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Thursday, April 17, 2014Day #6!DeShaney & Law and Social Customs -The law is not an isolated entity, we are inseparable to the law--it is a social phenomenon and exits within human contexts!!!!!!Slide 1:!•1988: The Supreme Court grants Certiorari ("Cert")!! -District: dismissed on summary judgment (said he did not have a Constitutional Argument--did not mean he couldn't explore different remedies at the state level) !! -Federal Avenue a better option for him because it is so expensive to pay for him to live in a mental home for the rest of life and they would not of been granted what he needs!! ! -dismissed on appellate level!! -Had to Appeal at the Way to the Supreme Court -- was granted Certiorari ("cert") --(Supreme Court only hears a small number of cases each year.)!! -DeShaney vs. Winnebago only about constitutionality to the state actors!•Joshua had state remedies available, but there was a cap on lifelong medical expenses!•Randy DeShaney served less than two years in prison. His criminal guilt is a separate matter from Winnebagos County's civil liability!•Stare decisis: "let the decision stand" -- This doctrine of precedent under which courts decide new cases on the basis of previous rulings!! Two Key Prior Cases:!•Estelle v. Gamble, 429 U.S. 97 (1976): secures inmates' right to in-custody medical care !! -Was injured in prison!! -Prison staff did not provide them with adequate medical care!! -Supreme Court ruled in his favor!! -stands for the idea you have the basic right to medical care if you are in a jail or a prison !•Youngberg v. Romeo, 457 U.S. 307 (1982): secures basic care rights of involuntary psychiatric patients !! -Romeo in govt. psychiatric facility--wasn't in their by his own decision!! -Looked at the Estelle v. Gamble and said he had similar rights!! -stands for the idea if you are a patient in a psychiatric hospital you have basic right to care and conditions and cannot be locked up for not reasonable reasons!! -stand for the idea when the govt. deprives you of the capacity to take care of yourself, it must provide you with substantive due process!! When applied to Joshua!-When Winnebago became aware of his situation, they became responsible for his care!1Thursday, April 17, 2014-He was in a state of confinement by the state because they said they were responsible for him !-The state of Estelle and Youngberg should extend to him!! -How broadly or narrowly do you respond to the precedent? (some judges see a fit where others do not) !! -Supreme Court; Reverse & Remanded, Joshua lost!!!!!Slide #2: Majority Decision !•The case is based on "undeniably tragic" facts, but the Due Process Clause does not extend to Joshua's particular situation!! -no one is denying Winnebago county did not failed. Their failure is not a constitutional issue. !•The Court should not yield to the "impulse of natural sympathy," for Joshua and his mother !! -we would be letting our emotions overtake that this is really not a violation of his constitution rights!! -just because the govt. gave up doesn't mean it's not a constitutional claim (but this dose not mean you lose in other options--state court) !! -not going to stretch the 14th amendment because we feel bad for Josh !•State liability by itself isn't a constitutional violation!•Legislative reform is the proper avenue for justice in this case, not judicial expansion of the 14th Amendment!•A formalist reading of the 14th Amendment and case law, esp. Estelle v. Gamble and Yougnberg v. Romeo !! -Joshua not in same situation in Gamble or Younberg because he was under the control of his father!!!!!Slide #3: Dissenting Opinions!•Justice Brennan: criticizes the majority for giving, "stingy scope" to prior rulings in Estelle and Youngberg!! -they are being to literal and are missing the point!! -Yes it is true Joshua was not in four walls but he was confined!! -When the DSS said we are responsible for Josh that put it in the same league as Estelle and Youngberg !! -Once you report the abuse, the DSS takes the lead and is responsible for the welfare of the child when the allegations are presented and brought to their attention--because of this it is as if he is locked up !•Exclusive responsibility of DSS for child welfare amounted to Joshua's "effective confinement"!•If DSS actions had been discriminatory, there would have been liability, so why not in this class?!! -Majority is only looking at who acted and who failed to act. State social worker did nothing when they should have acted. Inaction can be as any bit of abusive as inaction !2Thursday, April 17, 2014•"Inaction can be every bit as abusive of power as action." (13/22)!•Justice Blackmun: "The Court itself retreats into a sterile formalism" (14/322) !! -even though the DSS didn't physically harm Josh they did by screwing up so badly so their harm was just as bad !! -Legal Formalism: reading the letter of the law!! -Legal Activist: see more stretch in the law (Blackmun) looks at the law's underlying intent. See more wiggle romo in the law. "But such formalistic reasoning has no place in the broad..." What he is saying: the broad and stirring clauses, (moral imagination--getting goosebumps from reading) don't come to the 14th amendment with a dry literal attitude about what it is about. Remember what the 14th amendment came from (from post antebellum--this is when they stuck with the law and sent people back to slavery) --when people lack moral courage in interpreting the law we end up with people being left in the state of servitude. You can be compassionate and still do right by the law !!!!!!Slide #4 !•"I would adopt a sympathetic reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging."!•Defendant Kemmeter: "I just knew the phone would ring some day and Joshua would be dead." (12/210) !•A humanizing decision: "Poor Joshua!"!•Notice Justice Blackmun's understanding of the 14th Amendment: "broad and stirring Clauses"!! -Tragedy of Power is this: how do you rule the law?!! ! -no one wants to be the social worker who makes the wrong call !•How can we balance law and "moral ambition" Reflect no the tragic imperfection of legal power and of the translation of human predicaments into legal decision !!!!!Slide #5 Law & Social Custom !What is the relationship between written laws and unwritten social customs? !How and Why do legal decision reflect

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UW LSJ 375 - DeShaney & Law and Social Customs

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