Schiavo and Gilmore

[Samuel Bagenstos]

Agreed, and though 4>1, 4<5.

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
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Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> Mary Dudziak <mdudziak at law.usc.edu> 3/21/2005 12:23:28 PM >>>
Just a note to agree w/ Ann on Gilmore and add a small point:  If I
remember correctly, Bessie Gilmore did not argue that she herself was
harmed -- she only raised the harm to her son, which is why the Court
treated it as a 3rd party case.  In the Schiavo case, the
title of the statue itself refers to the harm to the parents (it's for
the 'relief' of the parents), so they could both allege their own
injury
and also the statute's exception to usual prudential limits on 3rd
party
standing.

Mary Dudziak

On Mon, 21 Mar 2005, Ann Althouse wrote:

> Thanks for bringing up Gilmore. I wrote an article on the subject in
> 1991 called "Standing in Fluffy Slippers" (77 Va. L. Rev. 1177).
Here's
> the relevant passage from that article : "In the Gilmore case, the
> Court did not even discuss whether Bessie Gilmore had standing
because
> of the injury the state would inflict upon her if it killed her son;
it
> discussed only Gary Gilmore's own injury, which made him the sole
> decisionmaker as to whether to appeal his case, so long as he had
> enough competence to make a 'knowing and intelligent waiver.'"
>
> I believe most/all commentators think that the mother would meet the
> injury in fact requirement. Anyone on the list think not?
>
> So, I don't think Gilmore is an obstacle as to the Article III
point.
>
> Ann
>
>
> On Mar 21, 2005, at 11:47 AM, Andrew Koppelman wrote:
>
> > There hasn't been much discussion of the bill's conferral of
standing
> > on the parents, but there is some authority that suggests that you
> > haven't suffered Article III injury when your child is killed. 
Four
> > judges (Burger, Powell, Stevens, and Rehnquist) expressed that
> > position in Gilmore v. Utah, 429 US 1012 (1976), where Bessie
Gilmore
> > sought to challenge the legality of her son Gary's upcoming
execution.
> >  Only Blackmun was willing to say that the question of Bessie's
> > standing was "not insubstantial."  (The per curiam opinion for the
> > Court did not expressly reach the issue.)  It is odd to say that
> > Bessie's injury is not substantial, but that's the view that got
the
> > most votes in Gilmore.
> >
> > This case of course addresses the core issue of constitutional
> > standing, not the prudential prong, so Congress can't change it.
> >
> > In Gilmore's case, he was held to be comptent, so his mother
couldn't
> > petition as next friend.  No one alleges that Terry Schiavo is
> > competent, so perhaps her parents can sue in next friend capacity. 
Is
> > there unlimited power in Congress to confer next friend status? 
If
> > there is, that would appear to suggest enormous discretion in
Congress
> > to get around Article III limitations by conferring next friend
status
> > on anyone on whom it wishes to confer third party standing.
> >
> > How much of an obstacle is Gilmore to the Schiavos' claim?
> >
> >
> > ________________________________________
> >
> > Andrew Koppelman
> > Professor of Law and Political Science
> > Northwestern University School of Law
> > 357 East Chicago Avenue
> > Chicago, IL  60611-3069
> > (312) 503-8431
> > mailto:akoppelman at northwestern.edu 
> > ________________________________________
> >
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>

____________________________________________
Mary L. Dudziak
Judge Edward J. and Ruey L. Guirado Professor of Law and History
University of Southern California Law School
Los Angeles, CA   90089-0071
mdudziak at law.usc.edu 
http://www.usc.edu/dept/law/faculty/mdudziak.htm 
(213) 740-4789 (phone)	(213) 740-5502 (fax)


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