Day 6 Thursday April 17 2014 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 Argument did not mean he couldn t explore different remedies at the state level District dismissed on summary judgment said he did not have a Constitutional 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 Supreme Court only hears a small number of cases each year Had to Appeal at the Way to the Supreme Court was granted Certiorari cert 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 Estelle v Gamble 429 U S 97 1976 secures inmates right to in custody medical care Two Key Prior Cases Was injured in prison Prison staff did not provide them with adequate medical care Supreme Court ruled in his favor a prison stands for the idea you have the basic right to medical care if you are in a jail or 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 right to care and conditions and cannot be locked up for not reasonable reasons stands for the idea if you are a patient in a psychiatric hospital you have basic yourself it must provide you with substantive due process stand for the idea when the govt deprives you of the capacity to take care of When applied to Joshua When Winnebago became aware of his situation they became responsible for his care 1 He was in a state of con nement by the state because they said they were responsible for him The state of Estelle and Youngberg should extend to him t where others do not How broadly or narrowly do you respond to the precedent some judges see a Thursday April 17 2014 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 constitutional issue no one is denying Winnebago county did not failed Their failure is not a The Court should not yield to the impulse of natural sympathy for Joshua and his mother constitution rights we would be letting our emotions overtake that this is really not a violation of his this dose not mean you lose in other options state court just because the govt gave up doesn t mean it s not a constitutional claim but 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 control of his father Joshua not in same situation in Gamble or Younberg because he was under the 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 con ned as Estelle and Youngberg When the DSS said we are responsible for Josh that put it in the same league 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 con nement 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 2 Thursday 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 badly so their harm was just as bad even though the DSS didn t physically harm Josh they did by screwing up so 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 Re ect 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 re ect unwritten social norms and values Law and Custom Don t Always Fit the jaywalking example Slide 6 Hartog Hartog contrasts two models often used to explain the nature and evolution of legal cases Model 1 Laws are understood as single texts with xed determinate meanings The single text model looks for gaps between these meanings and social action hence the term Gap analysis we can agree