But that the experience is traumatic doesn't otherwise tell us how we should think about it from any legal perspective. We are capable of killing people we love, out of love and mercy as well as out of anger, jealousy, avarice, shame, and all sorts of other emotions that accompany killings. Mostly, we try to imagine that people who kill people they love aren't like us, most often by believing that their love isn't like our love, that there's something wrong with it, or that there's something else wrong with the people, something that separates us from them. But when the emotions that accompany killing are emotions that we want to have, that we consider noble, brave, loving, transcendent, we can no longer separate ourselves in this way from people who have killed. We are compelled to recognize that our humanity ties us equally to those who kill and those who are killed. We lose our power of "splitting," and we must deal with ourselves as we are.

Of course, that does not necessarily mean that we will tolerate the killing. The ideological fabric of Christianity, for example, agrees that we are tied equally to those who kill and those who are killed, but understands "Thou Shalt Not Kill" with sufficient strictness to require the dodgy logic you run up against in Barber and Quill in order to mediate between dogma and ethical reality.

Until we do. Which may not be the way we expect. Imagination is a powerful realm of human learning, along with experience. It is the unique power of the human mind that it can bring us into the complexity of human experience through imagination. We use literature, music, painting, and other arts to learn more about ourselves, and the deepest conundrums of our nature, before the lessons of experience are etched forever on us.

But what happens when such uncomfortable thoughts are brought to us by a confused client?

Why necessarily confused? Perhaps not at all confused.

To be a good lawyer, we must be able to think through such difficult issues, not just for our sake, but for our clients’ sake as well (that is, if we choose to be lawyers who interact with clients). Yet these important lessons, unfortunately, will never be taught in the law school classroom.

I would not be so sure that the subject won't be taught in a law school classroom. We should find a moment to discuss it further ourselves, in the fall or when we next meet.

In the meantime, though you have found the complexity, the involvements of the unconscious, in the tissue of unconvincing logic-chopping that is our law at its highest-flown about this subject, you have yourself turned away at the last minute from formulating an approach to the issues. Given that the distinctions in the judicial opinions are too flimsy to believe, what other than looking the other way can or should society do?

Lengthening the Handle

Inconceivable Thoughts

The thought of having to confront this despairing scenario is distressing. Trying to imagine a suffering family member asking me to help him end his life, doing the act, and then having to live with the fact that my loved one is gone forever due to my actions is impossible. My mind prevents me from fully exploring the idea because it is too painful to conceive. Therefore we keep such thoughts at a safe distance away, wrap them in legal jargon, and never have to actually consider them.

But what happens when such uncomfortable thoughts are brought to us by a confused client? To be a good lawyer, we must be able to think through such difficult issues, not just for our sake, but for our clients’ sake as well (that is, if we choose to be lawyers who interact with clients). Yet these important lessons, unfortunately, will never be taught in the law school classroom.

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It might have helped at that point in the conversation if someone had pointed out that this distinction was the one resorted to by the medieval Catholic Church: the so-called "doctrine of double effect" first articulated by Thomas Aquinas to justify homicide in self-defense—as it happens—and subsequently developed by the Church as the central approach to issues involving end-of-life care. That it is permissible to bring about as a side-effect of intentional conduct outcomes it would be morally unacceptable to bring about intentionally no doubt seems an impossibly fine moral distinction to you. Sikhism is a very much more morally straightforward system of thought than Roman Catholicism. At the bottom of the cases you discuss—but not apparently at the bottom of the discussion that occurred in your course—is a cultural and intellectual history of some interest. Understanding it explains phenomena large and small: why thousands of people die every year in the US in unnecessary torment, and how some of the most wrenching decisions in a human life are made.

Your way of reaching this point is analytically sharp and clearly expressed. In that sense, this is a very successful draft. But in the end, all you have been able to do is to show an idea is wrong. What you didn't get at first teaching were the tools to do more with the idea: to show where, right or wrong, it leads.

The Clear Line

-- By ShefaliSingh - 16 Feb 2012

"Distinguishing Omission from Acts"

The Supreme Court used comparable reasoning when it considered if a New York assisted-suicide ban was unconstitutional in Vacco v. Quill. Respondents argued that because New York allowed people to refuse life-sustaining treatment, but did not permit physician-assisted suicide, the assisted-suicide ban violated the Fourteenth Amendment’s Equal Protection Clause. They further asserted that the prescription of lethal medication to “mentally competent, terminally ill patients” who are suffering great pain and wish to end their lives would be consistent with medical practice standards. However, the ban prevented physicians from doing so. According to the Court, New York’s prohibition on assisted suicide was not unconstitutional because “[everyone], regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause.” Vacco v. Quill, 521 U.S. 793, 800 (1997). The Court then acknowledged that the Court of Appeals had concluded that people on life-support are in fact treated differently from those who are not, because they have the choice to end their life by stopping their treatment, while others do not have the choice to end their lives through assisted suicide. But, the Supreme Court contended, there is a widely recognized “logical” and “rational” difference between terminating life-sustaining treatment and assisted suicide, which is based on the “legal principles” of causation and intent. For,

“when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. . . . A doctor who assists a suicide, however, “must, necessarily and indubitably, intend primarily that the patient be made dead.”. . . Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not.” Vacco, 521 U.S. at 801-02.

This supposedly is the clear line between “letting die” and “killing.”

A Functional Approach

The superficial attempts to differentiate assisted suicide and the act of ‘pulling the plug’ are examples of Cohen’s transcendental nonsense. How is the intent of a doctor to ease the passing of his patient so significantly different in these situations to justify labeling one action murder, and the other an acceptable act? How is there an omission of action by ‘pulling the plug,’ removing feeding tubes or turning off a respirator? Why does it really matter if it is labeled an omission of action? What makes a fatal disease a better causation of death rather than lethal injection, especially when the latter can cause less suffering? Even if material differences between the two acts actually existed, under a functionalist approach, they would not matter. If the definitions of the concepts of (1) the administration of lethal medication to mentally competent, terminally ill patients, and (2) the termination of life supporting treatment, were tied to real word facts and results, there would be little significant difference between the two. However, “in every field of law we should find the same habit of ignoring practical questions of value or of positive fact and taking refuge in “legal problems” which can always be answered by manipulating legal concepts in certain approved ways” (Cohen, 80).

Helping People Ignore the Truth

Since reading Cohen’s article, I have noticed transcendental nonsense in many of the cases I read. I question why the courts cannot take a more functionalist approach in their analyses, and why they do not define legal concepts in terms of what they actually do instead of the result the court wishes to attain. I also become frustrated with unsupported holdings such as, “Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently.” Vacco v. Quill, 521 U.S. at 808. Instead of enlightening people, courts use transcendental nonsense to help people ignores truths they do not want to face (such as assisted suicide and the ending of life sustaining treatment are the same), either because of discomfort, confusion or laziness.

We did briefly discuss several of these ideas in regards to Barber in the classroom. But instead of recognizing the farce of the courts and confronting the issue, the conversation mainly consisted of “Is this distinction ridiculous? Probably. Now let’s move on to the next topic.”

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