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Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 11, Number 1 Louisville, Kentucky, October, 1985 Private School Decision Affects Local Classrooms By Bill Wilson The July 1 decision by the Supreme Court concerning Aguilar v. Felton, 105 S.Ct. 3232 (1985), should have a direct impact on local public and private schools. It may in fact have determined the outcome of Barnes v. Bennett which is scheduled for an October 11 hearing in Federal District Court. Barnes concerns the use of federal funds by the Jefferson County Public Schools to finance remedial classes taught by public school teachers in parochial schools. A motion for summary judgment, filed by local members of Americans United for the Separation of Church and State, asks for an immediate end to the use of federal funds for remedial classes in private schools. Also requested is the payment of attorney's fees and the reimbursement to the federal government of funds expended since 1965 on such classes. The funds involved are from a program known as Chapter 1 (U .S.C.A. § 2701). The purpose of the program, originally enacted in 1965, is to provide financial assistance to educational districts to meet the needs of deprived children from low-income families. This year Jefferson County expects to receive $7,303,942 in Chapter 1 aid to provide services for 12,250 public and 985 nonpublic students. Approximately 60 percent of these non-public students attend Catholic schools. The Felton case, involving the New York City Public Schools, was initiated by taxpayers alleging aid to private schools in such a manner was a violation of the Establishment Clause. Justice William Brennan delivering the opinion of the Court stated, "Although separation in this context cannot mean the absence of all contacts, the action required to maintain the program in this case would produce a kind of continuing day to day relationship which the policy of neutrality seeks to minimize." The Court argued that religious schools, which have the advancement and preservation of a certain religion as a major purpose, would have to submit to close monitoring by public officials to insure that religion was not allowed to intrude into such remedial classes. "This pervasive monitoring by public authorities in the sectarian schools in fringes precisely upon those Establishment Clause values at the root of the prohibition of excessive entanglement," said the Court. Dan McCubbin, general counsel for the Jefferson County Schools, concedes the only real difference between the local action and Felton are the parties involved. McCubbin stated, "The basic issue isn't whether to comply, it's how to comply in an orderly manner.'' The Board of Education, in a reply to the plaintiff's motion for summary judgment, agrees that Felton requires the entry of an order prohibiting the current arrangement. However, the Board disagrees with the plaintiffs on three points. It contends: 1. The court should delay the effective date of its order against the school board until the end of the 1985-86 school year. 2. The court should not order the reimbursement of Chapter 1 funds. 3. Attorney's fees should not be awarded to the plaintiffs. Joseph McPherson, Director of the Chapter 1 Program for Jefferson County, specifies ten problems with implementing a new plan for non-public students before the end of the current school year. In an affidavit, he lists concerns over the effectiveness of alternative programs, the cost of implementation, individual differences among the 25 non-public schools in question and compliance with state statutes regarding teacher reassignment. McPherson feels an orderly transition is paramount since 60 percent of these students are in grades 1-3 and would be greatly affected by any changes. McPherson also outlined five alternatives under consideration: 1. Mobile classrooms on public property near or adjacent to the private schools. 2. Rental of neutral classrooms in a public building near the school. 3. Busing of students to public schools for classes during school hours. 4. Busing of students to public schools for classes after school hours. arculation 5400 photo by Nancy Morgan 5. Originate on public school premises television programs which could be relayed to the non-public students. D.K. Dumeyer, associate school superintendent for special programs involving the Catholic schools, is not in favor, in most instances, of busing the children to public schools. Dumeyer states, "When transporting the children is going to take 45 minutes to an hour out of our school programs, we think that's asking too much." The mobile classroom idea (used by some Catholic schools in other states) is viable in Dumeyer's view-. "A loss of ten minutes of our time we don't consider too much.'' He added that he had proposed an alternative to the Ky. Department of Education, but could not comment further pending the Department's decision. Professor Robert Stenger of the U of L School of Law thinks the Felton decision is consistent with past Supreme Court holdings. He predicts a combination of alternatives will be used. (continued on page 3) U of L Experiments With New Admissions Program By Jennifer C. Miller Admissions by Performance, a new program designed as an alternative to the traditional admissions process, was conducted on a trial basis at U of L this summer. This program allows students who might not otherwise have the opportunity to attend law school the chance to do so. It also gives students an opportunity to determine if they want to be a lawyer without wasting a lot of time and money. The only prerequisites are the LSA T and a desire to study law. U of L is the first Kentucky school to initiate such a program, but several schools across the United States have already included the Admissions by Performance program in their selection process. Fifty students were accepted into the program, but only 45 actually attended the first day of classes. Out of the 45, four withdrew after the first week. Out of the 41 students, 12 were admitted into the 1985 Freshman Class, five in the day division and seven in the night division. The program was conducted at night and ran during the eight week summer session. The curriculum consisted of two courses, Criminal Law and Domestic Relations, taught by Professors Quick and Stenger respectively. These two particular courses were chosen because both are substantive law courses which require the students to analyze cases and statutory material. In addition, no prerequisite course study is needed to grasp an understanding of the subject matter entailed. The classes were held in a normal law school setting; and due to the fact that the program was held during the summer session, the students were not isolated, but had contact with second and third year law students. Three-hour essay exams were given. The Criminal Law exam also included a true or false section. In order to pass, a seventy on each exam was required. The students could also earn five points for class participation, which would be included in their grade. Both Professor Stenger and Professor Quick said that the motivation level of the students was overwhelming. Proof of this was the fact that not a single student withdrew after the first week of classes. In addition, every student took both exams, regardless of any discouragement caused by the first exam. The majority of the students, whether they were accepted or not, felt the program was fair and each student was treated equally, according to Professor Stenger. The only grievance towards the program was in regard to the grading. Many students felt that the standards set were too high. There will be a proposal before the admissions committee to incorporate the Admissions by Performance program in the admissions process. According to Professor Quick, in order to obtain accurate feedback, it will be necessary to continue the program for at least three to four years, after which time the 1985 students will have taken the bar exam. Professor Quick further stated that different courses and instructors should be utilized in order to determine the success of the program. Professor Stenger added that the only change that he would make would be to limit the number of enrollment to 40 students instead of 50 because that is the ideal number to work with effectively and efficiently. 2 Louisville Law Examiner, October, 1985 Louisville Law Examiner EDITORIAL BOARD Joel D. Zakem Editor-in-Chief Nancy Morgan Photography Editor Tom Ransdell J .B. Phillips Associate Editors Benjamin Johnson Managing Editor Rebecca Ward Brandeis Brief Editor Winnie McConnell Night Associate Editor STAFF Jennifer C. Miller Bill Wilson Profeaor LAURENCE W. KNOWLES, C,11Mila11l The Louisville Law Exaptlner is published six times during the academic year in the interest of the University of Louisville School of Law community. Articles are invited from faculty members, students, and members of the bar who wish to do freelance work. Any proposed article should be cleared with the Editor as to topic and length. Address all communications to The Louisville Law Examiner, School of Law, Univer-sity of Louisville, Louisville, Kentucky 40292. Phone: S02-S88-6398. Kentucky Protects Bar Exam Results By J.B. Phillips Undoubtedly, of all the hardships that one must endure to become an attorney, one of the most grueling rites of passage that an aspiring attorney must face is sitting for his or her bar examination. With this in mind, imagine the devastation that 542 New York bar candidates suffered when their Multi State Exams disappeared from the local offices of the New York State Board of Law Examiners. In fairness to the New York Bar Examiners, some 6,562 candidates sat for the exam this past July. However, this offers very little consolation to those candidates who after eight weeks of intensive study, and two days of exams, face the nightmare of retaking the MBE. The lives and professional careers of these candidates have been tragically disrupted. In an interview, Judge Stuart Lampe, a Kentucky Bar Examiner, outlined the general procedures and security measures employed in Kentucky. In reference to the New York situation, NOTICE If you have any out-of-date books in the SBA/Law School Book Exchange, they must be claimed by November 18, 1985. Books not claimed will be disposed of. Thank You The SBA S.B.A. Judge Lampe began the conversation by saying, "I hope that it doe n't happen here." He explained that the Kentucky Board of Bar Examiners consists of six members. Each member formulates two questions. These twelve questions comprise the essay portion of the Kentucky Bar Examination. Following the exam, each member of the Board carries home the papers that contain the respective questions that each member formulated. Each member is responsible for his or her papers, and uses his or her best efforts to maintain the security of the papers and the integrity of the Bar. The M BE, however, is treated differently. The Executive Secretary of the Board in Lexington gathers the papers for the MBE after the exam. The Secretary then puts them under lock and key in the office, and subsequently forwards the answer sheets to the University of Florida in Gainesville where they are graded by computer as soon as possible. The MBE consists of 200 multiple choice questions. In New York, a passing grade is determined by combining both the scores from the New York essay and multiple choice portions of the exam with the MBE. Candidates who fare poorly on one portion of the exam may boost their overall score with a better performance on the other. Judge Lampe pointed out that the number of applicants taking the exam in Kentucky is usually only a fraction of the number of New York applicants. Moreover, he thought that it was unlikely that the same problem would crop up in Kentucky although he could not rule out the possibility. Letter To The Editor: PFO Law Challenged Why does it seem, that whenever it is election time there are more pebple convicted of non-violent felonies who fall under the Persistent Felony Offender I statute? Those who qualify for the PFO I sentencing need only have two prior felony convictions. The alarming rate at which the population in the state prisons are growing, appears to rise more in relation to tough sentencing statutes, rather than to an increase in the crime rate. Some may call this politics. How can this be justified? Statistics show the majority of the people sentenced under the PFO I statute are from low income urban areas. Many have committed a series of non-violent felonies, some as insignificant as a $150.00 bad check. Many cannot afford an attorney at $15,000.00. Poor people must get a state appointed attorney, who is underpaid and overworked. Despite their best efforts, these attorneys really can't represent their clients best interest, because of their work load. It costs our taxpayers approximately $15,000.00 to keep one person locked up by the Department of Corrections for one year. Judges are asking taxpayers to pay $15,000.00 for each person sentenced to prison for ten years for an often minor non-violent offense. How large is the bill? There are approximately 500 people sentenced under the PFO I statute. While I have no statistics on male offenders, it is significant that none of the women in Kentucky prisons are sentenced under PFO I are incarcerated for violent offenses. None have any violent felonies in their records. Taxpayers spend $7,500,000.00 (seven million five hundred thousand) annually to keep PFO I offenders incarcerated. Although some of these sentences are justifiable based on repeated acts of violence, however 30 percent are nonviolent offenses. No wonder there is so little money for schooling, psychological services, or even adequate bed spacing in prisons. Too many valuable dollars must be allocated for food and supervision of such offenders. As you may have guessed by now, I am one of the four women sentenced under the PFO I statute. How do they determine whom to give the PFO charge to and not to give it to? According to KRS 532.080, all one needs to be eligible for the PFO I is two prior felony convictions. My offense was a nonviolent crime. Yet I have to spend ten years of my life paying for it, when there are women here who are sentenced on serious, violent crimes (such as murder, manslaughter, reckless homicide, armed robbery, assault, etc.) who will be released much sooner than I will. The psychological effects of the reality of prison life for ten years on anyone, especially a female, is tremendous. The maternal instincts readily come to mind. The instinct to love, protect, and care, are in daily conflict with the demands of selfsurvival. Mental toughness is first in a woman's prison. I am taken away from my loved ones and miss the sharing we once had, talking on the phone is becoming very distant and the visits have begun to lessen. Waiting for the next seven and half years to pass so we can be together again, seems like a lifetime away. I often feel that I will never be released from here. I keep telling myself that day will come and I try to think rationally and to stay as busy as I am allowed. I have begun to depend on the protected society I now live in. I can't help but wonder what the 1990's are going to be like, and what it is going to be like after living in this protected society for ten years and then being released is very scary. This is what the courts could be offering instead of spending $2,250,000.00 a year: 1) An intensive-supervision parole program. The cost would be less than $15,000.00 a year required to keep an offender in prison. It takes $800.00 a year to keep an offender on parole, according to statistics from the Sentencing and Overcrowding Commission, appointed by former Governor John Y. Brown; 2) Work-oriented pre-release programs to gradually reintegrate offenders into society; 3) A re-evaluation of the persistentfelon laws. The number of those in prison under the existing persistent-felon laws have risen from 79 in 1979 to 1400 as of July, 1985; 4) More minimum-security facilities, which will allow those sentenced under the persistent-felon law to be able to serve there; 5) Developing a community-based restitution program, in which offenders live in a controlled environment, work in • the community, contribute toward the cost of their meals and housing, and pay restitution to the victims of their crime; 6) Working voluntarily for the state for a period of time to be decided by the courts; 7) Give the parole board discretion to review individual PFO offender at least after half of their time has been served; 8) Reduce all class C and D felonies to PFO second degree. I do believe the PFO I can be a valuable instrument if applied appropriately to violent offenders, but how can one justify sending someone to prison for ten years for a series of nonviolent minor offenses? The Supreme Court states, "A prison sentence must fit the crime," Solem v. Helm, 103 S. Ct. 3001. This set a precedent regarding the proportionality of a prison sentence fitting the crime committed. The Supreme Court went on to say, "that a jail sentence may be unconstitutional if it is too long for the crime that the defendant committed." Based on this recent ruling, and the Eighth Amendment to the U.S. Constitution, I feel that a ten-flat year sentence for a non-violent crime is definitely "cruel and unusual punishment." Does this sound like the sentence fits the crime? Beckie Harp #2202 Kentucky Correctional Institute for Women Pewee Valley, Kentucky 40056-0337 Louisville Law Examiner, October, 19S5 3 ... ·: ::.: :. ·: .: .; · .... NIGHT and DAY Night Students Praise Clerking Experience By Winnie McConnell So you're thinking about finding a job as a law clerk in a local firm, but you're uncertain if the benefits will outweigh the minimal salary and irregular hours associated with the position. Any skepticism you have about such a position may be eliminated once you read what several students have to say about their law clerk jobs. "It's a great experience for any law student," said Terry Cushing, a fourthyear evening division law student. "I would recommend clerking to anyone because if gives you a more practical outlook about the law." · Cushing, who has been a law clerk in the U.S. Attorney's Office since June, 1984, said his post entails writing appellate briefs and responses to motions in district court. "Most of my research is concentrated in criminal law," he said, adding that he plans to pursue a career in criminal law. "I would like to become a prosecutor and I believe my law clerk experience here will give me a better chance to work with a government agency." Cushing feels clerking has improved his writing abilities. "I've learned how to write much better which helps me to write better law exams," he said . To Cindy Shirooni, her basic legal research skills have excelled because of her new clerk position. Her research has primarily focused on contract law. "It's tiresome to do research all day long but you get used to it and you realize that it's great experience for you," said Ms. Shirooni, a second-year night law student. "You learn more by doing." Ms. Shirooni said night students have a slight advantage over day law students when it comes to law clerk positions. "I think the fact I am a night student is in my favor because I am able to work more hours each day, whereas a day law student can only work two to three hours in a day," she said. "This gives a night student more time to do research for the law firm." According to Ms. Shirooni, a law clerk position is advantageous in that it offers law students an opportunity to meet prospective employers. Terry Mann, another second-year night law student, is finding out that his law clerk job has helped in his law studies. "Before I began my law clerk job I found it difficult to sit down and study for two consecutive hours," he said. "Now, I am able to study the law for five hours!" Smaller Firms Should Use Placement Service By Phyllis Leibson Placement Director Most of the law firms in this country are "small" law firms - containing fewer than 20 attorneys. The majority of these firms do not become involved in fall, on-campus recruitment. Thus, small firms may end up feeling that many students who they might be interested in have already accepted positions by the time most small firms seek to fill their personnel needs. Typically, a small firm 's personnel needs are immediate. However, oncampus recruiting does increase the placement of students. I am suggesting that small firms join the bandwagon occupied by the larger firms and schedule on-campus interviews. A firm's presence on campus definitely increases the firm's visibility and enhances the firm's reputation among the students. Arranging an interview at the law school could also save time and money. All the arrangements are handled by the Placement Office. The lawyer/interviewer sets aside one day to be devoted to recruitment. This may take less time than trying to arrange interviews at the firm's office between clients' appointments. Discrimination Charge Sparks Investigation By Tom Ransdell The NAACP has begun to investigate complaints of racial discrimination made against the University of Louisville Law School. Geoffrey Ellis, president of the Louisville NAACP, said that there have been "several written complaints against the Law School, but we are investigating all of the professional schools at the University of Louisville." Ellis declined to elaborate on the nature of the complaints against the Law School, saying only, "the problem does not seem to· be academic." Dean Barbara Lewis of the University of Louisville Law School says that the Law School actively recruits qualified minority students, because "a diverse student body and faculty enhances the education of all the students." "However," Lewis said, "the Law School only recruits applicants they think will be successful, and by successful I mean graduating from law school and passing the bar." She also pointed out that the Law School recently won the University Award for affirmative action. The NAACP investigation of the University's professional schools stems from a claim made by Dr. Albert Ngoyi that he was dismissed from the Medical School's residency program because he is black. The University has refused to elaborate on the dismissal of Ngoyi because it ''involves personnel issues and matters of student performance that must remain confidential." It is not too late to arrange for fall interviews. However, if you will not know your exact personnel needs until later in the year, spring on-campus interviews may be another way to facilitate recruitment. If coming to U of L does not seem practical, the second best way to attract a number of candidates is to notify the Placement Office. The office will post a notice on the Placement Bulletin Board and it will also be included in Going Places. Going Places is a job newsletter sent to recent graduates and other alumni. The employer also has the option of using "blind ads," in which resumes are submitted to the Placement Office, which then forwards the resumes to the employer. To gain maximum exposure, a small law firm may wish to join the National Association for Law Placement (NALP), whose membership includes many large firms and law schools. By filling out a NALP profile form, your firm will be included in the Directory Of Legal Employers, which is distributed to nearly all the law schools in this country. Small law firms can also utilize the Placement Office for aid in the recruitment of experienced attorneys. The office keeps an active file of resumes from alumni who are presently working, but are interested in other career opportunities. Representatives of the firm may review this file. If a small firm is interested in students or graduates for clerking or attorney positions, they can contact the Placement Office at (502) 588-6368. The office will be glad to serve you in meeting your special recruitment needs. Phyllis Leibson, Placement Director of the U of L Law School, will be contributing a regular column for the Law Examiner. Mann said he hopes his clerking experience will guide him in deciding what area of the law to pursue. "I think it will offer me a chance to see if I want to work in a large law firm rather than in a smaller one," he said. For Kathy Holder, a fourth-year night student, a law clerk job this summer convinced her that it was an invaluable experience. As a law clerk you will learn how to tie several issues of the law together in a single situation, according to Ms. Holder. "I think you learn so much as a law clerk that it should be a required course," said Ms. Holder. "It makes you more efficient in your work and teaches you how to conduct yourself as an attorney. It will also build your confidence. Even if you only clerk for a few hours, it's worth it." PllyiHs Leibson Court Decision (from page 1) Stenger feels the strong public policy toward Chapter 1 remedial education will cause public schools to continue providing such classes for private students in some form. "The private schools have always given remedial students to public schools. The state seems to be an educator of last resort." Dumeyer agrees. "We hire an adequate number of classroom teachers. We don't have the expertise to take the children out of the class and give them extra instruction. We don't have the wherewithal to do that." Dumeyer, unsure of the effect the decision will have on Catholic school enrollment, states, ''A lot of our parents are making in some cases extreme sacrifices to keep their children in Catholic schools. I just don't believe any of our parents put their children in Catholic schools because there was a Chapter 1 program. Now whether or not they will take them out because there isn't, I can't say." 4 Louisville Law Examiner, October, 198S BRANDEIS BRIEF ... Parents Right To Withhold By Steven R. Smith Professor Steven R. Smith University of Louisville School of Law, is an associate in Community Health at the Louisville School of Med. & author of "Life & Death, Decisions in the Nursery; New York Law Review (1982)." Under what circumstances is it legally permissible for parents to cause the death of their children by withholding treatment, and what process is appropriate to ensure that treatment is not otherwise withheld. It isn't a new, or small, problem. More than a decade ago, an article in the New England Journal of Medicine estimated that 140Jo of all infant deaths which occurred in a major medical center were the result of withdrawing or withholding treatment. In an appearance before a Senate subcommittee, one of the authors of the study told Senator Kennedy that he estimated "a couple of thousand infants a year (died) who would have survived if treatment had not been withdrawn." While some argue that this number is now lower than it was ten years ago, others argue that with new technology the number of preventable deaths resulting from withholding treatment may in fact be rising. Physicians with or without parents, and generally without formal review, commonly make these life or death judgments on an ad hoc basis without any clear understanding of when they may legally withhold or withdraw treatment. In reaching these decisions, principles which are not acceptable to the law may be applied de facto. For example, if lifesaving treatment which is routinely given to normal infants is not given to mentally retarded or other abnormal children, life and death treatment decisions are based on I.Q. or disfigurement. The decision not to provide lifesaving treatment is so profound that it should be based on principles which are clear and generally acceptable. Commentators sometimes confuse this issue with the abortion question or whether a competent adult may refuse treatment for himself. In fact these issues are not closely related. An adult's decision to refuse lifesaving treatment may be based on his own belief systems in which he chooses the course of action based on his hopes, fears and view of life; no such autonomy right can be exercised by infants. The abortion debate is, at its core, a debate over when human life (or "personhood") begins. Almost no one seriously argues that the infants involved in refusal of treatment cases are not human beings, subject to the protection of the law. Thus it is not at all inconsistent for someone to: (l) favor a broad right of competent adults to refuse lifesaving treatment for themselves; (2) support abortion rights; and (3) support strong protection of the legal rights of newborns. The distinction between "ordinary" and "extraordinary" treatment, has also given rise to much confusion. Ordinary treatment is that which is generally accepted and customary under the circumstances. Extraordinary treatment may mean experimental treatment, or treatment with a very high cost/benefit ratio. It may also mean very invasive treatment or treatment which most people would reject. Extraordinary treatment may refer to such a variety of different concepts that it cannot legitimately be used in making nontreatment decisions for infants or others. The use of the term by courts and commentators is confusing and dangerous. Parents are generally empowered to make medical decisions concerning their infant children. This authority rests on the right of privacy of parents in child rearing and on the common law assumption that parents have the greatest possible interest in the wellbeing of their children. In practice, of course, parents' medical decisions may be influenced by factors which are not consistent with the best interest of the child. State has interest in parents' obligation The cost of care, the effects of the child on the family, the fact that the child is unplanned or "unwanted," the parent's religious beliefs, failure of the parents to fully understand medical treatment issues, or emotional problems of the parents may all affect the parents' medical decisions concerning the child. But courts have significantly limited the right of the parents to make medical decisions which will result in the child's death. Parents have an obligation to care for, and protect their children. During the last hundred years children have moved from being little more than chattels of their parents, to individuals with increasing legal protection. Decisions by parents to withhold consent for blood transfusions, vaccinations, abortions, and to refuse chemotherapy for their child's cancer are all examples where parents' decisions concerning medical treatment have been overturned by the courts. Child abuse and neglect statutes routinely provide for interference with parental decision-making when the child's health or life is endangered. As the Supreme Court has said in another context, "In our society, parental rights are limited by the legitimate rights and interest of their children. Parents may be free to become martyrs themselves, but it does not follow they are free ... to make martyrs of their children." The state has a strong interest in protecting human life. Thus, when the parents' decision as to treatment places the infant's life in unnecessary jeopardy, the state has a strong interest in reviewing that decision. Standards for Refusing Treatment A general rule can be stated that parents may not withhold lifesaving treatment from their children. Are there legitimate exceptions to this general rule? Since any exceptions to the rule involve the death of the very weakest in our society, the exceptions should be as narrow and as clear as possible. Although many standards have been put forth to justify withdrawal of treatment from infants, most of the proposed standards can be grouped into six categories: -when the quality of life would be low -when the burden on others would be great -when the child has a terminal condition -when the treatment proposed is experimental -when the treatment proposed is extremely risky -when some quantity (or length) in life is traded for an increased quality of the life that remains. Our inquiry here is to determioe which of these are legitimate bases for withholding treatment. A threshold issue is whether "defective newborns" (infants with mental or physical abnormalities) should be treated differently than "normal" newborns. The quality-of-life and burden-on-others categories force us to face this issue. Quality of Life Consider a newborn with a bowel obstruction which can be corrected with modest risk by relatively simple surgery. Death, probably only after a long period of suffering, is almost certainly the result of nontreatment. Suppose three infants suffer from this condition, one infant is normal, one has been born without legs, and another is profoundly retarded. We may assume that the law would require that the first child be given treatment to save its life even over the objections of the parents. Should the second child or the third child be treated differently because of the abnormalities? Subjective standard not reasonable In some ways it seems inhumane to force someone to live a life of low quality. On more careful reflection, however, permitting the termination of another's life because of a feeling that the life is not worth living poses very serious dangers. It rests on the assumptions that reasonable judgments about the quality of another's life can be made, and that the life of an abnormal child is so much less acceptable or meaningful than that of a normal child that allowing or causing the death of the abnormal child is justified. But the quality of life can legitimately be measured only from the point of view of the person actually experiencing the life. Even a life that includes pain may well be preferable to not experiencing life at all. In fact, we often do not know enough about the quality of tlte life of a defective newborn to make these judgments. Some may view the quality of life prospects for a child born to a large, uncaring family living in poverty to be quite limited, but it does not seem proper to withhold lifesaving treatment on that basis. In the 1960's at least one court suggested than an illegitimate child might have a cause of action against his biological father because it might have been better not to have been born at all than to have been born illegitimate. A severely depressed father may threaten to kill his son, whom he loves very much, to protect the child from the pain and suffering he associates with life, it being difficult for the father to understand what pleasure the child might find in life. In a different way, it is difficult for us to appreciate what the life of a defective newborn is like. We cannot possibly view life through the sensibilities of such a child. In fact, the quality of life of a profoundly mentally retarded infant, or infant with other defect, may not be dramatically lower than it is for other children. There is such a variety of views about what is valuable in life that it is unlikely there could be any agreement on what is "valuable" even if we could fully understand what a defective child was experiencing. Such a standard for judgment is much too subjective to be of use. Burden on others The great burden that a defective child may place on a family or society is sometimes offered as a reason to permit the withholding of lifesaving treatment. This concept is mentioned with surprising frequency in discussion with physicians and in the medical literature: This may be the most frightening argument for permitting the death of newborns. The great sympathy we feel for families facing these problems should not blind us to the principle that is being suggested. The disruption of the family may be an argument for allowing the family to give up custody and control of the child; it is not an argument for allowing the family to cause the death of the child. The proposition that one person's life should be ended by others to avoid potential social or economic harm is contrary to the most fundamental concepts of individual rights and protection central to our laws and constitution. It would surely be unacceptable as a general rule of law and there seems to be no legitimate reasons to apply such a principle to defective infants. However, should the principle be established that treatment may be refused for infants when their lives are too costly to others, there would be no strong reasons not to apply the same principle broadly, to the mentally ill, the seriously handicapped, the elderly infirm, and so on. The state has as strong an interest in protecting the life of a defective infant as it does in protecting the life of a normal infant. To suggest that the state's interest in preserving life is somehow reduced by a defect would be to alter seriously the traditional legal view -of the value of human life. If a disgruntled employee of a hospital enters the nursery and stabs two infants at random and they die, the attacker is Louis-ville Law Examiner, October, 1985 5 Treatment Examined equally guilty of homicide whether the death is of a normal child or a defective one. The employee may not defend against the charge of killing the defective child by claiming that the state's interest in protecting its life is not as strong as it is in the normal child. If both children are only injured but require blood transfusions to live, it would be anomalous to suggest that the state may properly order the transfusion (over parental objection) for the normal child, but not the defective child because the state does not have a strong interest in preserving the defective child. Beyond the philosophical problems of imposing a "burden on other-s" (or "broad utilitarian" approach) to infant treatment cases, consider the practical application of the principle. The calculation is incredibly complex and extremely speculative. In part it requires a prediction of the "net utility" (broadly defined, pleasure less displeasure) the infant will experience from life; that this be calculated on the basis of how the infant himself will perceive this pleasure and pain; and finally that the infant's predicted net utility be compared with the predicted pleasure and pain that the infant will bring to the family and any number of other individuals, from their own perspectives. This calculation is so speculative as to be impossible. Situation discourages objective decision It is the kind of speculation, in part, that makes a "too costly to society" or a "life not worth living" principle dangerous. Without any reliable information on which to make these decisions, physicians or parents make them on the basis of hunches, fears, suspicions, and prejudices, and often on a feeling that lives substantially different from our own are imperfect. These are generally inappropriate bases on which to make life and death decisions, and may often cause us to undervalue considerably the lives of those who are different. It is impossible to understand with any precision lives so different from our own, and yet that is what a quality of life or burden on others calculation requires. Paul Ramsey, an Ethicist, a Professor at Princeton University, and the author of "Ethics at the Edges of Life" 1978, concludes, "If physicians are going to play God under the pretense of providing relief for the human condition, let up hope they play God as God plays God." The very speculative nature of the quality/cost of life or burden on others decisions might be viewed by some as a reason to leave this calculation in the sphere of parental child rearing decisionmaking: when we cannot predict with certainty what is in the best interest of the child or family, we should leave it to the parents to decide. To one degree or another, of course, the future quality of life of any child is uncertain and speculative. The degree to which that uncertainty increases in abnormal children is far from clear; many Down's Syndrome children are said to be quite happy, for example. While uncertainty about the future of a child or the desirability of some forms of treatment does create substantial latitude in the family, it does not create a general power in the family to withhold treatment when that decision would cause the child's death, even when the family claims to be acting in what they perceive to be the broadest best interests of the child. A parental decision that it is better for a child to die for lack of blood than to violate God's commands by accepting a transfusion cannot be supported on the basis of the uncertainty or speculative nature of what is in fact in the long term best interest of the child. Nor could a decision to upheld to withhold a transfusion because the parents believe that a child's life will not be worth living due to a missing limb. Furthermore, the parents of defective infants may be in a particularly bad position to make speculative quality or cost of life calculations when life and death decisions are involved; they may have conflicting interests or be emotionally unfit to make the decisions. In many nontreatment cases, the defective child is refused treatment not because of the costs or discomfort of the treatment itself but because of the nature of the child's life. In these cases, it is not a decision about treatment so much as it is a decision whether to take advantage of the fortuitous presence of a life-threatening disease to cause the death of the infant. Terminal Condition Children with terminal illnesses may present special considerations. In some instances, special factors may legitimately affect treatment decisions. Where, for example, it is coupled with a terminal illness especially where it is likely to cause death before, or at about the same time as, the treatable condition would if left untreated. Terminal illnesses may also make common treatment impossible, very risky, or extraordinarily painful. However, the fact that an infant has a terminal condition, or less than a normal life expectancy should not, in itself, justify all refusal of treatment. The state maintains a strong interest in preserving life, regardless of the length of life expectancy. Thus homicide statutes apply equally, whether the victim is 100 years old or 20 years old. The existence of a terminal condition would, however, justify refusal of treatment where treatment becomes futile (would not appreciably extend life) or otherwise makes lifesaving treatment impractical. Experimental treatment A strong argument can be made that parents should not be forced to accept for their children, truly experimental treatment. Requiring an experimental treatment would provide a source of research subjects, imposing an obligation to make the infant a human guinea pig. Parents of a child suffering a life-threatening condition will often seek experimental treatment as a last hope, but such treatment should not be photo by Nancy Morgan Prof. Ste-ven R. Smith imposed against the parents' will. Risky treatment At some point, the risk of lifesaving treatment may become so significant as to actually reduce the child's life expectancy. The decision to accept treatment is then based on a comparison of the relative chances for survival as a result of treatment or nontreatment. Here the choice is to promote the infants life, and the treatment may be withheld to maximize the chances for the longest period of survival. This differs dramatically from the before-mentioned decisions to withhold treatment described above where the decision to refuse treatment is made in order to minimize the infant's life expectancy. Trading quality for quantity When the risk is that the treatment will dramatically reduce the infant's ability to appreciate and enjoy life, then a true "quality of life" versus "quantity of life" issue is presented. These decisions are fundamentally different from withholding treatment to cause death. These decisions, in effect, result in trading some length of life (or the risk of shortening life) for some improvement in the life that remains. These tradeoffs, common in medical treatment, are reasonable in infant nontreatment situations as long as the improvement in life quality is substantial compared with the level of risk to life, that is, where there is a legitimate and reasonable improvement in the quality of life resulting from nontreatment. Giving pain palliatives when there is some risk they may cause the early death of an infant may be justified on the grounds that the quality of life is improved even at the risk of shortening it somewhat. This is a much different concept than giving the pain palliative, even in the absence of significant pain, to cause the death of the infant. Treatment decisions that risk shortening life for the sake of quality of life, (e.g., a life with less pain), require a comparison of a life with pain to a shorter life without some of the pain. Comparing these two lives, although difficult, probably calls for judgments closer to the range of human experience than an effort to judge, in some absolute terms, whether a life is worth living at all. Standards for withholding treatment Thus it appears inappropriate to withhold lifesaving treatment from an infant because the life of the child is not worth living or because the infant's existence places too great a burden on the family or society. These two reasons for not providing treatment are not so much treatment decisions as decisions to take advantage of a life-threatening condition to cause the death of the infant. It does seem permissible to withhold lifesaving treatment if: (1) the treatment would be futile in that there is no reasonable hope it can extend significantly the life of the infant; (2) the proposed treatment is experimental; (3) the treatment is so risky that it cannot be said to maximize the infant's life expectancy; or (4) the probability that the treatment will cause substantial pain or suffering is not offset by the corresponding probability that it will increase the length of life. Whether to let nature take its course Acti-ve and Passi-ve Euthanasia A distinction is commonly made between passive euthanasia (death caused by inaction) and active euthanasia (action taken to cause death). The active/passive euthanasia distinction is somewhat artificial in many infant care decisions. There seems to be no real difference between (A) taking direct action to cause death and (B) withholding treatment when the purpose of inaction is to cause death. The decision to withhold treatment is being made by those responsible for the care of the child and the failure to provide for medical care necessary to sustain life is a breach of the duty of care. The concept of "letting nature take its course" (e.g., letting an untreated infection or bowel obstruction cause the death of an infant) suggests that it is appropriate to permit death to occur by inaction (natural causes) when it would be inappropriate to directly cause death. As a general principle, however, this broad let nature take its course proposition is unacceptable. We surely are not willing to "let nature take its course" by letting an infant starve to death, nor drown if it fell into a lake, nor freeze to death by letting it wander into the elements. In fact, we are not prepared to let nature run its course by refusing to treat a serious infection with antibiotics if the infant is normal. The duty of parents is to protect their (continued on page 6) --- 6 Louisville Law Examiner, October, 1985 Hicks Brings Teaching Experience To U of L By Joel D. Zakem Although this is his first tenure track teaching position, law school teaching is not entirely new to Professor Renardo L. Hicks. As part of his LL.M. program in Legal Education at Temple University, Hicks taught classes for two years. Hicks recently began his first semester as an Assistant Professor at U of L, teaching night classes in Criminal Law and Professional Responsibility . "The night classes have worked out well, so far," said Hicks. "I have all day to be with my family. " Hicks, who is married and has two daughters, added that, while he is satisfied now, "I'm not sure that I want to teach only night courses forever." The enthusiasm of the students at U of L has impressed Hicks. He also expressed satisfaction at the. size of his classes. "At Temple, the Evidence class I collaborated in teaching had 175 students," he said. '·'Here, with 52 people taking Criminal Law and 24 enrolled in Professional Responsibility, the classes are more manageable." Hicks said that one of his teaching philosophies is that different subjects require different teaching methods, and he plans to tailor his teaching to fit the course. "At Temple, I was able to experiment with various teaching methods including the use of simulations, the case method, and, where appropriate, role playing," he said. While looking forward to becoming a tenured professor at U of L, Hicks admitted to being a ''trial lawyer at heart." "Once tenured, I hope to do more trial work," he said, "even if I have to do it for free." At Temple, Hicks was an Associate in the Temple Legal Aid Office, where he handled approximately 30 cases a year as well as supervising some students. While going for his J.D. at Northeastern, Hicks participated in a variety of co-op programs which included doing research for the Department of Revenue, clerking for a federal magistrate, acting as a student attorney in the Public Defender's office, and working at a Withholding Treatment (from page 5) children against such life-threatening "forces of nature." If a parent does not have a duty to provide medical treatment because the life of the infant is viewed as not worth living, logic suggests that the parent hould be able to decide on active euthanasia. Indeed such administration may be viewed as humane for the same reasons that withholding treatment is viewed as humane: active euthanasia enables the infant to avoid a life not worth living or filled with pain . In the example of the infant with the bowel obstruction, failure to perform surgery will result in a period of painful waiting for an almost uncertain death . This pain could be avoided by the administration of euthanasia. The infant's quality of life while awaiting death would be even worse than the low quality of life with treatment. If one accepts this line of reasoning, active euthanasia would not be limited to merciful shortening of the lives of only those infants with poor life quality who fortuituously develop other lifethreatening diseases. If a Down's Syndrome or Trisomy 13 child has such a poor quality of life that lifesaving treatment can legitimately be withheld, it seems unreasonable, and even unfair to the infant, to require that he develop a life-threatening disease ending his life. The above should not, of course, be taken as an endorsement of active euthanasia. It is meant to suggest that the blanket distinction between active and passive euthanasia cannot be supported when the purpose of withholding treatment is to end a life. Such decisions are not merely treatment decisions. They are decisions to use the life-threatening condition as the means of terminating the life and, when made by those with the duty of care, this nontreatment is similar to direct euthanasia. Decision-Makers and Procedures Standards governing nontreatment decisions will be effective only if those making treatment decisions actually apply the proper standard. As we noted earlier, there is reason to believe that a number of nontreatment decisions are made which violate what the law apparently requires in terms of treatment. At the very least, these medical decisions are being made without any serious effort to the requirements of the law . In some cases, the decision-making process may be ineffective either because the physician does not adequately consult with the parents or because the parents or the physician have interests which conflict with the best interest of the child. Although well-intentioned, they may find a defective infant emotionally difficult to accept, and an understandable sense of anger and guilt may interfere with their ability to make treatment decisions in the child's best interest. They may not wish or be able to support the child, or they may see the child as disruptive of the family or marriage. It is hard to imagine a time when parents are less likely to be emotionally well-suited to make life and death decisions in the best interest of a child than shortly after they realize that the child may be seriously defective. The critical life and death nature of the decision, the evidence that decisions have been made in the past without any serious efforts to determine whether they conform to the law, and the potential conflict of interest between the child and the decision-maker suggests the need for a review of nontreatment decisions which may result in the death of the child. A judicial review to determine whether nontreatment decisions adhere to legal standards might be desirable, but such a system would undoubtedly be so cumbersome and slow that it would be ineffective in many cases. The federal three-person firm in Philadelphia, where he occupied the second seat at a number of trials. For now, however, teaching is Hicks' primary concern. "I'm on a tenure track," he said, "and I'll do whatever it takes to be tenured." photo by Nancy Morgan Professor Hicks makes a point. government, and many commentators, have suggested that an ethics committee might be able to respond more quickly. But the diversity of backgrounds which would make such a committee valuable might also make it extremely difficult to convene quickly. An alternative would be to have a review team consisting of a physician and an attorney. The attorney would provide expertise in applying the legal standards and the physician an independent medical view. Treatment could not be withdrawn or withheld unless both members of the team certified that nontreatment was appropriate, the attorney determining that legal standards were met and the independent physician determining that the medical conditions of the infant had been assessed correctly. If the team were appointed by a court, and had the responsibility of reporting back to the court, this process would provide for a timely review and, at the same time, would offer significant assurance to the treating physicians that they were not violating the law in withholding treatment. The attorney could bring unresolved legal issues to the attention of the courts. Such an approach would, of course, require physicians to give notice before withholding lifesaving treatment. The attorney and independent physician review appears to have real promise. It avoids cumbersome court and committee procedures and allows an informed interdisciplinary review of critical nontreatment decisions. Such a review process, using narrowly defined nontreatment standards, might be established by hospitals in an effort to meet their obligations to avoid discrimination against handicapped infants. In addition, some formal reporting of nontreatment decisions is appropriate. All states now have child abuse reporting statutes requiring medical personnel to report suspected child abuse or neglect. Some states require reporting of abortions or certain prescription drugs. Withholding lifesaving treatment is a matter of even greater importance than any of tliese because it involves the death of a human being. Requiring the report of such nontreatment seems quite reasonable in light of the gravity of the decision and the difficulty of adequately enforcing legal standards without such reports. Decisions to withhold lifesaving treatment from an infant should be recorded along with the reasons and basis for the decisions. Under this system, the records would be subject to court review. Failure to follow adequate standards or process would leave the physician or parents open to legal sanctions, although not necessarily charges of criminal homicide. Unless criminal action is undertaken, the reports would remain confidential and not available to the public, thus protecting the privacy of the infants and parents. Some physicians and others claim it is inappropriate for a court or other government agency to "interfere" with the family's decision to withhold treatment; this claim is not valid when the consequence of the decision is the death of the infant. There is broad agreement that such interference is highly desirable when the infant is "normal," and different rules should not be justified on the basis of a child's handicap. An expeditious review, applying reasonably clear standards, would not seriously interfere with the legitimate autonomy rights of the family and would protect important rights of the infants. A slightly different version of this article was originally published in the July, 1984, issue of Empire State Report, and is Copyright 1984 by Empire State Report, and it is reprinted with their permission. ' - Louisville Law Examiner, October, 1985 CALI Offers Computerized Help To Students By Tom Ransdell So, you say that old common law just isn't user friendly? Rules, rules, and more rules. Do they blur together like the colors of the spectrum? Need some help sorting those hair-splitting legal concepts? Meet CALI, computer assisted legal instruction. Equipped with expertly written programs, the computer can be a genuine study aid to the law student. And, contrary to popular belief, you don't need an engineering degree to operate one. All you need is a few minutes to orient yourself and an index fi nger to operate the machine. The programs can be used to clarify confusing legal concepts or to polish your conceptions in preparation for exam taking. The format is usually a simple one. The computer offers a hypothetical situation and then· asks a question. The student then answers in either multiple choice form or a short statement. The computer then tells· the student whether or not their answer was correct and offers a model answer with the relevant issues complete with references to rules, treatises, and case law. Evidence, Torts , Trial Advocacy, Insurance Law, and Commercial Transactions; but there aren't any programs presently written which ¢over the other major legal subjects. Another problem is that, with the exception of evidence, the programs require the use of a study manual. This means extra reading which may or may not be immediately beneficial to the study of law. "It's not a panacea," says Professor James Merritt. "Some students who have worked with it have felt that their time could have been just as well spent actually studying." Be that as it may, this student found that CALI could be a useful reviewing technique. The necessary reading of the manuals does not occupy much time and often the reading consists of concise, well-defined ruJes of law that are exactly what the student wishes to review anyway. Admittedly, it would have been more difficult if Professor Merritt hadn't been willing to help me get started , but he showed me how to turn the computer on and off, how to begin the program, and the rest was as easy as using a typewriter. The biggest flaw I found with CALI is that the multiple choice answers may be too easy when you compare them to a grueling three hour law exam. 7 There are some pitfalls. For one, very few of the programs cover an entire subject. Instead they cover narrower topics, such as the use of intent in torts, or the concept of hearsay. Also, the subjects covered are limited. There are programs covering Civil Procedure, Professional Responsibility, If any student is interested in judging the benefits of CALI for themselves they may contact Professor Merritt in room 246. photo by Nancy Morgan Professor James Merrit demonstrates CALI. UNIVERSITY OF SANTA CLARA SCHOOL OF LAW 1986 SUMMER LAW STUDY ABROAD TOKYO, JAPAN: June 18-August 8 Emphasis on U.S.-Japanese trade. Courses in Japanese Legal System, International Business Transactions, Comparative Law (Intellectual Property). Internships available with Japanese law firms and corporate law departments. Instruction primarily by Japanese professors and practitioners. Visits to governmental offices and company legal departments. STRASBOURG,FRANCE GENEVA, SWITZERLAND: June 11-August 1 Emphasis on international human rights and public international law. Taught by recognized experts from around the world. In cooperation with International Institute of Human Rights (Strasbourg) and Henry Dunant Institute (Geneva). Courses on Sources of International Law, International Organizations, Human Rights, Immigration Law, Soviet Legal System, Humanitarian Law and International Arbitration. Internship possibilities. ALL COURSES ARE TAUGHT IN ENGLISH. APPROVED BY THE AMERICAN BAR ASSOCIATION For a detailed brochure, contact: Institute of International & Comparative Law University of Santa Clara School of Law Santa Clara, California 95053 (408) 554-4162 OXFORD, ENGLAND: July 30-August 1 0 Students live in 15th century Oxford College and are taught by Oxford professors in Oxford Tutorial Method. Course offerings include Jurisprudence, European Economic Community Law, Legal History, Computers and the Law, International Human Rights, and various comparative courses in areas such as Constitutional Law, Real Property, Torts and Labor Law. HONG KONG: June 9-July 30 Trade and commercial relations between Hong Kong, China, and the rest of East Asia is the focus of the program held at the University of Hong Kong. Practice component affords option of either a writing tutorial or an internship with a Hong Kong law firm, corporate law office or government agency. SINGAPORE-ASEAN: June 9-July 30 Focus of the program to be held at the National University of Singapore will be the legal systems and cultures as well as the legal aspects of international investment and development in the countries of the Association of Southeast Asian Nations (ASEAN) (Singapore, Indonesia, Thailand, Malaysia, The Philippines, Brunei). At our disposal are the resources of the National University of Singapore, The Asian-Pacific Tax and Investment Research Center, local and international faculty consisting of recognized experts in the subject areas, and law offices which deal in such matters on a daily basis. Internships required after the academic courses with Singapore and Bangkok (Thailand) law offices. To reserve your place, please include a $100.00 deposit. 8 Louisville Law Examiner; October, 1985 photo by Nancy Morgan Professor Leslie Abramson gets a unique view of his Criminal Detainers. U.S. Supreme Court Cites Prof. Abramson's Book A 1979 book authored by U of L Law Professor Leslie Abramson was recently cited in a United States Supreme Court opinion. Both the majority opinion, by Justice Harry Blackmun, and the dissent, by Justice William Brennan, referred to Abramson's book, Criminal Detainers. The case, Carchman v. Nash, can be found at 105 S. Ct. 3401 (1985). While the book has been cited in several decisions by other tribunals, Professor Abramson said that this is the first tiflle it was mentioned in a Supreme Louisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40292 Court decision. The cite was also a surprise for the professor. "The only inkling I had was that a research attorney on the Supreme Court's library staff called and asked whether a proposed statute in the book that addresses parole and probation detainers had been adopted in any jurisdiction," said Abramson. This was not the first time Abramson was cited by the high court. An article of his dealing with state taxation of exports was cited in a 1975 Supreme Court decision. John M. Harlan Louis D. Brandeis ' . tfii . .• ~ Louisville\~.· ~,. Law Examiner AMERICAN BAR ASSOCIATION A WARD FOR EXCELLENCE, 1984 Volume 11 Local Schools Discuss Courts Decision on Aid To Private Schools Page 1 U of L Experiments with Admissions By Performance Page 1 Brandeis Brief: Withholding Treatment To Terminally Ill Infants Page 4 Renardo Hicks Joins Faculty Page 6 October, 1985 Numhl'r I Photo by Nancy Morgan
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Title | Louisville Law Examiner 11.1, October 1985 |
Alternative Title | Law Student Publications |
Contributors | University of Louisville. School of Law |
Description | The Louisville Law Examiner (1975-1991) was the second of three official University of Louisville School of Law student publications. |
Searchable Text | Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 11, Number 1 Louisville, Kentucky, October, 1985 Private School Decision Affects Local Classrooms By Bill Wilson The July 1 decision by the Supreme Court concerning Aguilar v. Felton, 105 S.Ct. 3232 (1985), should have a direct impact on local public and private schools. It may in fact have determined the outcome of Barnes v. Bennett which is scheduled for an October 11 hearing in Federal District Court. Barnes concerns the use of federal funds by the Jefferson County Public Schools to finance remedial classes taught by public school teachers in parochial schools. A motion for summary judgment, filed by local members of Americans United for the Separation of Church and State, asks for an immediate end to the use of federal funds for remedial classes in private schools. Also requested is the payment of attorney's fees and the reimbursement to the federal government of funds expended since 1965 on such classes. The funds involved are from a program known as Chapter 1 (U .S.C.A. § 2701). The purpose of the program, originally enacted in 1965, is to provide financial assistance to educational districts to meet the needs of deprived children from low-income families. This year Jefferson County expects to receive $7,303,942 in Chapter 1 aid to provide services for 12,250 public and 985 nonpublic students. Approximately 60 percent of these non-public students attend Catholic schools. The Felton case, involving the New York City Public Schools, was initiated by taxpayers alleging aid to private schools in such a manner was a violation of the Establishment Clause. Justice William Brennan delivering the opinion of the Court stated, "Although separation in this context cannot mean the absence of all contacts, the action required to maintain the program in this case would produce a kind of continuing day to day relationship which the policy of neutrality seeks to minimize." The Court argued that religious schools, which have the advancement and preservation of a certain religion as a major purpose, would have to submit to close monitoring by public officials to insure that religion was not allowed to intrude into such remedial classes. "This pervasive monitoring by public authorities in the sectarian schools in fringes precisely upon those Establishment Clause values at the root of the prohibition of excessive entanglement," said the Court. Dan McCubbin, general counsel for the Jefferson County Schools, concedes the only real difference between the local action and Felton are the parties involved. McCubbin stated, "The basic issue isn't whether to comply, it's how to comply in an orderly manner.'' The Board of Education, in a reply to the plaintiff's motion for summary judgment, agrees that Felton requires the entry of an order prohibiting the current arrangement. However, the Board disagrees with the plaintiffs on three points. It contends: 1. The court should delay the effective date of its order against the school board until the end of the 1985-86 school year. 2. The court should not order the reimbursement of Chapter 1 funds. 3. Attorney's fees should not be awarded to the plaintiffs. Joseph McPherson, Director of the Chapter 1 Program for Jefferson County, specifies ten problems with implementing a new plan for non-public students before the end of the current school year. In an affidavit, he lists concerns over the effectiveness of alternative programs, the cost of implementation, individual differences among the 25 non-public schools in question and compliance with state statutes regarding teacher reassignment. McPherson feels an orderly transition is paramount since 60 percent of these students are in grades 1-3 and would be greatly affected by any changes. McPherson also outlined five alternatives under consideration: 1. Mobile classrooms on public property near or adjacent to the private schools. 2. Rental of neutral classrooms in a public building near the school. 3. Busing of students to public schools for classes during school hours. 4. Busing of students to public schools for classes after school hours. arculation 5400 photo by Nancy Morgan 5. Originate on public school premises television programs which could be relayed to the non-public students. D.K. Dumeyer, associate school superintendent for special programs involving the Catholic schools, is not in favor, in most instances, of busing the children to public schools. Dumeyer states, "When transporting the children is going to take 45 minutes to an hour out of our school programs, we think that's asking too much." The mobile classroom idea (used by some Catholic schools in other states) is viable in Dumeyer's view-. "A loss of ten minutes of our time we don't consider too much.'' He added that he had proposed an alternative to the Ky. Department of Education, but could not comment further pending the Department's decision. Professor Robert Stenger of the U of L School of Law thinks the Felton decision is consistent with past Supreme Court holdings. He predicts a combination of alternatives will be used. (continued on page 3) U of L Experiments With New Admissions Program By Jennifer C. Miller Admissions by Performance, a new program designed as an alternative to the traditional admissions process, was conducted on a trial basis at U of L this summer. This program allows students who might not otherwise have the opportunity to attend law school the chance to do so. It also gives students an opportunity to determine if they want to be a lawyer without wasting a lot of time and money. The only prerequisites are the LSA T and a desire to study law. U of L is the first Kentucky school to initiate such a program, but several schools across the United States have already included the Admissions by Performance program in their selection process. Fifty students were accepted into the program, but only 45 actually attended the first day of classes. Out of the 45, four withdrew after the first week. Out of the 41 students, 12 were admitted into the 1985 Freshman Class, five in the day division and seven in the night division. The program was conducted at night and ran during the eight week summer session. The curriculum consisted of two courses, Criminal Law and Domestic Relations, taught by Professors Quick and Stenger respectively. These two particular courses were chosen because both are substantive law courses which require the students to analyze cases and statutory material. In addition, no prerequisite course study is needed to grasp an understanding of the subject matter entailed. The classes were held in a normal law school setting; and due to the fact that the program was held during the summer session, the students were not isolated, but had contact with second and third year law students. Three-hour essay exams were given. The Criminal Law exam also included a true or false section. In order to pass, a seventy on each exam was required. The students could also earn five points for class participation, which would be included in their grade. Both Professor Stenger and Professor Quick said that the motivation level of the students was overwhelming. Proof of this was the fact that not a single student withdrew after the first week of classes. In addition, every student took both exams, regardless of any discouragement caused by the first exam. The majority of the students, whether they were accepted or not, felt the program was fair and each student was treated equally, according to Professor Stenger. The only grievance towards the program was in regard to the grading. Many students felt that the standards set were too high. There will be a proposal before the admissions committee to incorporate the Admissions by Performance program in the admissions process. According to Professor Quick, in order to obtain accurate feedback, it will be necessary to continue the program for at least three to four years, after which time the 1985 students will have taken the bar exam. Professor Quick further stated that different courses and instructors should be utilized in order to determine the success of the program. Professor Stenger added that the only change that he would make would be to limit the number of enrollment to 40 students instead of 50 because that is the ideal number to work with effectively and efficiently. 2 Louisville Law Examiner, October, 1985 Louisville Law Examiner EDITORIAL BOARD Joel D. Zakem Editor-in-Chief Nancy Morgan Photography Editor Tom Ransdell J .B. Phillips Associate Editors Benjamin Johnson Managing Editor Rebecca Ward Brandeis Brief Editor Winnie McConnell Night Associate Editor STAFF Jennifer C. Miller Bill Wilson Profeaor LAURENCE W. KNOWLES, C,11Mila11l The Louisville Law Exaptlner is published six times during the academic year in the interest of the University of Louisville School of Law community. Articles are invited from faculty members, students, and members of the bar who wish to do freelance work. Any proposed article should be cleared with the Editor as to topic and length. Address all communications to The Louisville Law Examiner, School of Law, Univer-sity of Louisville, Louisville, Kentucky 40292. Phone: S02-S88-6398. Kentucky Protects Bar Exam Results By J.B. Phillips Undoubtedly, of all the hardships that one must endure to become an attorney, one of the most grueling rites of passage that an aspiring attorney must face is sitting for his or her bar examination. With this in mind, imagine the devastation that 542 New York bar candidates suffered when their Multi State Exams disappeared from the local offices of the New York State Board of Law Examiners. In fairness to the New York Bar Examiners, some 6,562 candidates sat for the exam this past July. However, this offers very little consolation to those candidates who after eight weeks of intensive study, and two days of exams, face the nightmare of retaking the MBE. The lives and professional careers of these candidates have been tragically disrupted. In an interview, Judge Stuart Lampe, a Kentucky Bar Examiner, outlined the general procedures and security measures employed in Kentucky. In reference to the New York situation, NOTICE If you have any out-of-date books in the SBA/Law School Book Exchange, they must be claimed by November 18, 1985. Books not claimed will be disposed of. Thank You The SBA S.B.A. Judge Lampe began the conversation by saying, "I hope that it doe n't happen here." He explained that the Kentucky Board of Bar Examiners consists of six members. Each member formulates two questions. These twelve questions comprise the essay portion of the Kentucky Bar Examination. Following the exam, each member of the Board carries home the papers that contain the respective questions that each member formulated. Each member is responsible for his or her papers, and uses his or her best efforts to maintain the security of the papers and the integrity of the Bar. The M BE, however, is treated differently. The Executive Secretary of the Board in Lexington gathers the papers for the MBE after the exam. The Secretary then puts them under lock and key in the office, and subsequently forwards the answer sheets to the University of Florida in Gainesville where they are graded by computer as soon as possible. The MBE consists of 200 multiple choice questions. In New York, a passing grade is determined by combining both the scores from the New York essay and multiple choice portions of the exam with the MBE. Candidates who fare poorly on one portion of the exam may boost their overall score with a better performance on the other. Judge Lampe pointed out that the number of applicants taking the exam in Kentucky is usually only a fraction of the number of New York applicants. Moreover, he thought that it was unlikely that the same problem would crop up in Kentucky although he could not rule out the possibility. Letter To The Editor: PFO Law Challenged Why does it seem, that whenever it is election time there are more pebple convicted of non-violent felonies who fall under the Persistent Felony Offender I statute? Those who qualify for the PFO I sentencing need only have two prior felony convictions. The alarming rate at which the population in the state prisons are growing, appears to rise more in relation to tough sentencing statutes, rather than to an increase in the crime rate. Some may call this politics. How can this be justified? Statistics show the majority of the people sentenced under the PFO I statute are from low income urban areas. Many have committed a series of non-violent felonies, some as insignificant as a $150.00 bad check. Many cannot afford an attorney at $15,000.00. Poor people must get a state appointed attorney, who is underpaid and overworked. Despite their best efforts, these attorneys really can't represent their clients best interest, because of their work load. It costs our taxpayers approximately $15,000.00 to keep one person locked up by the Department of Corrections for one year. Judges are asking taxpayers to pay $15,000.00 for each person sentenced to prison for ten years for an often minor non-violent offense. How large is the bill? There are approximately 500 people sentenced under the PFO I statute. While I have no statistics on male offenders, it is significant that none of the women in Kentucky prisons are sentenced under PFO I are incarcerated for violent offenses. None have any violent felonies in their records. Taxpayers spend $7,500,000.00 (seven million five hundred thousand) annually to keep PFO I offenders incarcerated. Although some of these sentences are justifiable based on repeated acts of violence, however 30 percent are nonviolent offenses. No wonder there is so little money for schooling, psychological services, or even adequate bed spacing in prisons. Too many valuable dollars must be allocated for food and supervision of such offenders. As you may have guessed by now, I am one of the four women sentenced under the PFO I statute. How do they determine whom to give the PFO charge to and not to give it to? According to KRS 532.080, all one needs to be eligible for the PFO I is two prior felony convictions. My offense was a nonviolent crime. Yet I have to spend ten years of my life paying for it, when there are women here who are sentenced on serious, violent crimes (such as murder, manslaughter, reckless homicide, armed robbery, assault, etc.) who will be released much sooner than I will. The psychological effects of the reality of prison life for ten years on anyone, especially a female, is tremendous. The maternal instincts readily come to mind. The instinct to love, protect, and care, are in daily conflict with the demands of selfsurvival. Mental toughness is first in a woman's prison. I am taken away from my loved ones and miss the sharing we once had, talking on the phone is becoming very distant and the visits have begun to lessen. Waiting for the next seven and half years to pass so we can be together again, seems like a lifetime away. I often feel that I will never be released from here. I keep telling myself that day will come and I try to think rationally and to stay as busy as I am allowed. I have begun to depend on the protected society I now live in. I can't help but wonder what the 1990's are going to be like, and what it is going to be like after living in this protected society for ten years and then being released is very scary. This is what the courts could be offering instead of spending $2,250,000.00 a year: 1) An intensive-supervision parole program. The cost would be less than $15,000.00 a year required to keep an offender in prison. It takes $800.00 a year to keep an offender on parole, according to statistics from the Sentencing and Overcrowding Commission, appointed by former Governor John Y. Brown; 2) Work-oriented pre-release programs to gradually reintegrate offenders into society; 3) A re-evaluation of the persistentfelon laws. The number of those in prison under the existing persistent-felon laws have risen from 79 in 1979 to 1400 as of July, 1985; 4) More minimum-security facilities, which will allow those sentenced under the persistent-felon law to be able to serve there; 5) Developing a community-based restitution program, in which offenders live in a controlled environment, work in • the community, contribute toward the cost of their meals and housing, and pay restitution to the victims of their crime; 6) Working voluntarily for the state for a period of time to be decided by the courts; 7) Give the parole board discretion to review individual PFO offender at least after half of their time has been served; 8) Reduce all class C and D felonies to PFO second degree. I do believe the PFO I can be a valuable instrument if applied appropriately to violent offenders, but how can one justify sending someone to prison for ten years for a series of nonviolent minor offenses? The Supreme Court states, "A prison sentence must fit the crime," Solem v. Helm, 103 S. Ct. 3001. This set a precedent regarding the proportionality of a prison sentence fitting the crime committed. The Supreme Court went on to say, "that a jail sentence may be unconstitutional if it is too long for the crime that the defendant committed." Based on this recent ruling, and the Eighth Amendment to the U.S. Constitution, I feel that a ten-flat year sentence for a non-violent crime is definitely "cruel and unusual punishment." Does this sound like the sentence fits the crime? Beckie Harp #2202 Kentucky Correctional Institute for Women Pewee Valley, Kentucky 40056-0337 Louisville Law Examiner, October, 19S5 3 ... ·: ::.: :. ·: .: .; · .... NIGHT and DAY Night Students Praise Clerking Experience By Winnie McConnell So you're thinking about finding a job as a law clerk in a local firm, but you're uncertain if the benefits will outweigh the minimal salary and irregular hours associated with the position. Any skepticism you have about such a position may be eliminated once you read what several students have to say about their law clerk jobs. "It's a great experience for any law student," said Terry Cushing, a fourthyear evening division law student. "I would recommend clerking to anyone because if gives you a more practical outlook about the law." · Cushing, who has been a law clerk in the U.S. Attorney's Office since June, 1984, said his post entails writing appellate briefs and responses to motions in district court. "Most of my research is concentrated in criminal law," he said, adding that he plans to pursue a career in criminal law. "I would like to become a prosecutor and I believe my law clerk experience here will give me a better chance to work with a government agency." Cushing feels clerking has improved his writing abilities. "I've learned how to write much better which helps me to write better law exams," he said . To Cindy Shirooni, her basic legal research skills have excelled because of her new clerk position. Her research has primarily focused on contract law. "It's tiresome to do research all day long but you get used to it and you realize that it's great experience for you," said Ms. Shirooni, a second-year night law student. "You learn more by doing." Ms. Shirooni said night students have a slight advantage over day law students when it comes to law clerk positions. "I think the fact I am a night student is in my favor because I am able to work more hours each day, whereas a day law student can only work two to three hours in a day," she said. "This gives a night student more time to do research for the law firm." According to Ms. Shirooni, a law clerk position is advantageous in that it offers law students an opportunity to meet prospective employers. Terry Mann, another second-year night law student, is finding out that his law clerk job has helped in his law studies. "Before I began my law clerk job I found it difficult to sit down and study for two consecutive hours," he said. "Now, I am able to study the law for five hours!" Smaller Firms Should Use Placement Service By Phyllis Leibson Placement Director Most of the law firms in this country are "small" law firms - containing fewer than 20 attorneys. The majority of these firms do not become involved in fall, on-campus recruitment. Thus, small firms may end up feeling that many students who they might be interested in have already accepted positions by the time most small firms seek to fill their personnel needs. Typically, a small firm 's personnel needs are immediate. However, oncampus recruiting does increase the placement of students. I am suggesting that small firms join the bandwagon occupied by the larger firms and schedule on-campus interviews. A firm's presence on campus definitely increases the firm's visibility and enhances the firm's reputation among the students. Arranging an interview at the law school could also save time and money. All the arrangements are handled by the Placement Office. The lawyer/interviewer sets aside one day to be devoted to recruitment. This may take less time than trying to arrange interviews at the firm's office between clients' appointments. Discrimination Charge Sparks Investigation By Tom Ransdell The NAACP has begun to investigate complaints of racial discrimination made against the University of Louisville Law School. Geoffrey Ellis, president of the Louisville NAACP, said that there have been "several written complaints against the Law School, but we are investigating all of the professional schools at the University of Louisville." Ellis declined to elaborate on the nature of the complaints against the Law School, saying only, "the problem does not seem to· be academic." Dean Barbara Lewis of the University of Louisville Law School says that the Law School actively recruits qualified minority students, because "a diverse student body and faculty enhances the education of all the students." "However," Lewis said, "the Law School only recruits applicants they think will be successful, and by successful I mean graduating from law school and passing the bar." She also pointed out that the Law School recently won the University Award for affirmative action. The NAACP investigation of the University's professional schools stems from a claim made by Dr. Albert Ngoyi that he was dismissed from the Medical School's residency program because he is black. The University has refused to elaborate on the dismissal of Ngoyi because it ''involves personnel issues and matters of student performance that must remain confidential." It is not too late to arrange for fall interviews. However, if you will not know your exact personnel needs until later in the year, spring on-campus interviews may be another way to facilitate recruitment. If coming to U of L does not seem practical, the second best way to attract a number of candidates is to notify the Placement Office. The office will post a notice on the Placement Bulletin Board and it will also be included in Going Places. Going Places is a job newsletter sent to recent graduates and other alumni. The employer also has the option of using "blind ads," in which resumes are submitted to the Placement Office, which then forwards the resumes to the employer. To gain maximum exposure, a small law firm may wish to join the National Association for Law Placement (NALP), whose membership includes many large firms and law schools. By filling out a NALP profile form, your firm will be included in the Directory Of Legal Employers, which is distributed to nearly all the law schools in this country. Small law firms can also utilize the Placement Office for aid in the recruitment of experienced attorneys. The office keeps an active file of resumes from alumni who are presently working, but are interested in other career opportunities. Representatives of the firm may review this file. If a small firm is interested in students or graduates for clerking or attorney positions, they can contact the Placement Office at (502) 588-6368. The office will be glad to serve you in meeting your special recruitment needs. Phyllis Leibson, Placement Director of the U of L Law School, will be contributing a regular column for the Law Examiner. Mann said he hopes his clerking experience will guide him in deciding what area of the law to pursue. "I think it will offer me a chance to see if I want to work in a large law firm rather than in a smaller one," he said. For Kathy Holder, a fourth-year night student, a law clerk job this summer convinced her that it was an invaluable experience. As a law clerk you will learn how to tie several issues of the law together in a single situation, according to Ms. Holder. "I think you learn so much as a law clerk that it should be a required course," said Ms. Holder. "It makes you more efficient in your work and teaches you how to conduct yourself as an attorney. It will also build your confidence. Even if you only clerk for a few hours, it's worth it." PllyiHs Leibson Court Decision (from page 1) Stenger feels the strong public policy toward Chapter 1 remedial education will cause public schools to continue providing such classes for private students in some form. "The private schools have always given remedial students to public schools. The state seems to be an educator of last resort." Dumeyer agrees. "We hire an adequate number of classroom teachers. We don't have the expertise to take the children out of the class and give them extra instruction. We don't have the wherewithal to do that." Dumeyer, unsure of the effect the decision will have on Catholic school enrollment, states, ''A lot of our parents are making in some cases extreme sacrifices to keep their children in Catholic schools. I just don't believe any of our parents put their children in Catholic schools because there was a Chapter 1 program. Now whether or not they will take them out because there isn't, I can't say." 4 Louisville Law Examiner, October, 198S BRANDEIS BRIEF ... Parents Right To Withhold By Steven R. Smith Professor Steven R. Smith University of Louisville School of Law, is an associate in Community Health at the Louisville School of Med. & author of "Life & Death, Decisions in the Nursery; New York Law Review (1982)." Under what circumstances is it legally permissible for parents to cause the death of their children by withholding treatment, and what process is appropriate to ensure that treatment is not otherwise withheld. It isn't a new, or small, problem. More than a decade ago, an article in the New England Journal of Medicine estimated that 140Jo of all infant deaths which occurred in a major medical center were the result of withdrawing or withholding treatment. In an appearance before a Senate subcommittee, one of the authors of the study told Senator Kennedy that he estimated "a couple of thousand infants a year (died) who would have survived if treatment had not been withdrawn." While some argue that this number is now lower than it was ten years ago, others argue that with new technology the number of preventable deaths resulting from withholding treatment may in fact be rising. Physicians with or without parents, and generally without formal review, commonly make these life or death judgments on an ad hoc basis without any clear understanding of when they may legally withhold or withdraw treatment. In reaching these decisions, principles which are not acceptable to the law may be applied de facto. For example, if lifesaving treatment which is routinely given to normal infants is not given to mentally retarded or other abnormal children, life and death treatment decisions are based on I.Q. or disfigurement. The decision not to provide lifesaving treatment is so profound that it should be based on principles which are clear and generally acceptable. Commentators sometimes confuse this issue with the abortion question or whether a competent adult may refuse treatment for himself. In fact these issues are not closely related. An adult's decision to refuse lifesaving treatment may be based on his own belief systems in which he chooses the course of action based on his hopes, fears and view of life; no such autonomy right can be exercised by infants. The abortion debate is, at its core, a debate over when human life (or "personhood") begins. Almost no one seriously argues that the infants involved in refusal of treatment cases are not human beings, subject to the protection of the law. Thus it is not at all inconsistent for someone to: (l) favor a broad right of competent adults to refuse lifesaving treatment for themselves; (2) support abortion rights; and (3) support strong protection of the legal rights of newborns. The distinction between "ordinary" and "extraordinary" treatment, has also given rise to much confusion. Ordinary treatment is that which is generally accepted and customary under the circumstances. Extraordinary treatment may mean experimental treatment, or treatment with a very high cost/benefit ratio. It may also mean very invasive treatment or treatment which most people would reject. Extraordinary treatment may refer to such a variety of different concepts that it cannot legitimately be used in making nontreatment decisions for infants or others. The use of the term by courts and commentators is confusing and dangerous. Parents are generally empowered to make medical decisions concerning their infant children. This authority rests on the right of privacy of parents in child rearing and on the common law assumption that parents have the greatest possible interest in the wellbeing of their children. In practice, of course, parents' medical decisions may be influenced by factors which are not consistent with the best interest of the child. State has interest in parents' obligation The cost of care, the effects of the child on the family, the fact that the child is unplanned or "unwanted," the parent's religious beliefs, failure of the parents to fully understand medical treatment issues, or emotional problems of the parents may all affect the parents' medical decisions concerning the child. But courts have significantly limited the right of the parents to make medical decisions which will result in the child's death. Parents have an obligation to care for, and protect their children. During the last hundred years children have moved from being little more than chattels of their parents, to individuals with increasing legal protection. Decisions by parents to withhold consent for blood transfusions, vaccinations, abortions, and to refuse chemotherapy for their child's cancer are all examples where parents' decisions concerning medical treatment have been overturned by the courts. Child abuse and neglect statutes routinely provide for interference with parental decision-making when the child's health or life is endangered. As the Supreme Court has said in another context, "In our society, parental rights are limited by the legitimate rights and interest of their children. Parents may be free to become martyrs themselves, but it does not follow they are free ... to make martyrs of their children." The state has a strong interest in protecting human life. Thus, when the parents' decision as to treatment places the infant's life in unnecessary jeopardy, the state has a strong interest in reviewing that decision. Standards for Refusing Treatment A general rule can be stated that parents may not withhold lifesaving treatment from their children. Are there legitimate exceptions to this general rule? Since any exceptions to the rule involve the death of the very weakest in our society, the exceptions should be as narrow and as clear as possible. Although many standards have been put forth to justify withdrawal of treatment from infants, most of the proposed standards can be grouped into six categories: -when the quality of life would be low -when the burden on others would be great -when the child has a terminal condition -when the treatment proposed is experimental -when the treatment proposed is extremely risky -when some quantity (or length) in life is traded for an increased quality of the life that remains. Our inquiry here is to determioe which of these are legitimate bases for withholding treatment. A threshold issue is whether "defective newborns" (infants with mental or physical abnormalities) should be treated differently than "normal" newborns. The quality-of-life and burden-on-others categories force us to face this issue. Quality of Life Consider a newborn with a bowel obstruction which can be corrected with modest risk by relatively simple surgery. Death, probably only after a long period of suffering, is almost certainly the result of nontreatment. Suppose three infants suffer from this condition, one infant is normal, one has been born without legs, and another is profoundly retarded. We may assume that the law would require that the first child be given treatment to save its life even over the objections of the parents. Should the second child or the third child be treated differently because of the abnormalities? Subjective standard not reasonable In some ways it seems inhumane to force someone to live a life of low quality. On more careful reflection, however, permitting the termination of another's life because of a feeling that the life is not worth living poses very serious dangers. It rests on the assumptions that reasonable judgments about the quality of another's life can be made, and that the life of an abnormal child is so much less acceptable or meaningful than that of a normal child that allowing or causing the death of the abnormal child is justified. But the quality of life can legitimately be measured only from the point of view of the person actually experiencing the life. Even a life that includes pain may well be preferable to not experiencing life at all. In fact, we often do not know enough about the quality of tlte life of a defective newborn to make these judgments. Some may view the quality of life prospects for a child born to a large, uncaring family living in poverty to be quite limited, but it does not seem proper to withhold lifesaving treatment on that basis. In the 1960's at least one court suggested than an illegitimate child might have a cause of action against his biological father because it might have been better not to have been born at all than to have been born illegitimate. A severely depressed father may threaten to kill his son, whom he loves very much, to protect the child from the pain and suffering he associates with life, it being difficult for the father to understand what pleasure the child might find in life. In a different way, it is difficult for us to appreciate what the life of a defective newborn is like. We cannot possibly view life through the sensibilities of such a child. In fact, the quality of life of a profoundly mentally retarded infant, or infant with other defect, may not be dramatically lower than it is for other children. There is such a variety of views about what is valuable in life that it is unlikely there could be any agreement on what is "valuable" even if we could fully understand what a defective child was experiencing. Such a standard for judgment is much too subjective to be of use. Burden on others The great burden that a defective child may place on a family or society is sometimes offered as a reason to permit the withholding of lifesaving treatment. This concept is mentioned with surprising frequency in discussion with physicians and in the medical literature: This may be the most frightening argument for permitting the death of newborns. The great sympathy we feel for families facing these problems should not blind us to the principle that is being suggested. The disruption of the family may be an argument for allowing the family to give up custody and control of the child; it is not an argument for allowing the family to cause the death of the child. The proposition that one person's life should be ended by others to avoid potential social or economic harm is contrary to the most fundamental concepts of individual rights and protection central to our laws and constitution. It would surely be unacceptable as a general rule of law and there seems to be no legitimate reasons to apply such a principle to defective infants. However, should the principle be established that treatment may be refused for infants when their lives are too costly to others, there would be no strong reasons not to apply the same principle broadly, to the mentally ill, the seriously handicapped, the elderly infirm, and so on. The state has as strong an interest in protecting the life of a defective infant as it does in protecting the life of a normal infant. To suggest that the state's interest in preserving life is somehow reduced by a defect would be to alter seriously the traditional legal view -of the value of human life. If a disgruntled employee of a hospital enters the nursery and stabs two infants at random and they die, the attacker is Louis-ville Law Examiner, October, 1985 5 Treatment Examined equally guilty of homicide whether the death is of a normal child or a defective one. The employee may not defend against the charge of killing the defective child by claiming that the state's interest in protecting its life is not as strong as it is in the normal child. If both children are only injured but require blood transfusions to live, it would be anomalous to suggest that the state may properly order the transfusion (over parental objection) for the normal child, but not the defective child because the state does not have a strong interest in preserving the defective child. Beyond the philosophical problems of imposing a "burden on other-s" (or "broad utilitarian" approach) to infant treatment cases, consider the practical application of the principle. The calculation is incredibly complex and extremely speculative. In part it requires a prediction of the "net utility" (broadly defined, pleasure less displeasure) the infant will experience from life; that this be calculated on the basis of how the infant himself will perceive this pleasure and pain; and finally that the infant's predicted net utility be compared with the predicted pleasure and pain that the infant will bring to the family and any number of other individuals, from their own perspectives. This calculation is so speculative as to be impossible. Situation discourages objective decision It is the kind of speculation, in part, that makes a "too costly to society" or a "life not worth living" principle dangerous. Without any reliable information on which to make these decisions, physicians or parents make them on the basis of hunches, fears, suspicions, and prejudices, and often on a feeling that lives substantially different from our own are imperfect. These are generally inappropriate bases on which to make life and death decisions, and may often cause us to undervalue considerably the lives of those who are different. It is impossible to understand with any precision lives so different from our own, and yet that is what a quality of life or burden on others calculation requires. Paul Ramsey, an Ethicist, a Professor at Princeton University, and the author of "Ethics at the Edges of Life" 1978, concludes, "If physicians are going to play God under the pretense of providing relief for the human condition, let up hope they play God as God plays God." The very speculative nature of the quality/cost of life or burden on others decisions might be viewed by some as a reason to leave this calculation in the sphere of parental child rearing decisionmaking: when we cannot predict with certainty what is in the best interest of the child or family, we should leave it to the parents to decide. To one degree or another, of course, the future quality of life of any child is uncertain and speculative. The degree to which that uncertainty increases in abnormal children is far from clear; many Down's Syndrome children are said to be quite happy, for example. While uncertainty about the future of a child or the desirability of some forms of treatment does create substantial latitude in the family, it does not create a general power in the family to withhold treatment when that decision would cause the child's death, even when the family claims to be acting in what they perceive to be the broadest best interests of the child. A parental decision that it is better for a child to die for lack of blood than to violate God's commands by accepting a transfusion cannot be supported on the basis of the uncertainty or speculative nature of what is in fact in the long term best interest of the child. Nor could a decision to upheld to withhold a transfusion because the parents believe that a child's life will not be worth living due to a missing limb. Furthermore, the parents of defective infants may be in a particularly bad position to make speculative quality or cost of life calculations when life and death decisions are involved; they may have conflicting interests or be emotionally unfit to make the decisions. In many nontreatment cases, the defective child is refused treatment not because of the costs or discomfort of the treatment itself but because of the nature of the child's life. In these cases, it is not a decision about treatment so much as it is a decision whether to take advantage of the fortuitous presence of a life-threatening disease to cause the death of the infant. Terminal Condition Children with terminal illnesses may present special considerations. In some instances, special factors may legitimately affect treatment decisions. Where, for example, it is coupled with a terminal illness especially where it is likely to cause death before, or at about the same time as, the treatable condition would if left untreated. Terminal illnesses may also make common treatment impossible, very risky, or extraordinarily painful. However, the fact that an infant has a terminal condition, or less than a normal life expectancy should not, in itself, justify all refusal of treatment. The state maintains a strong interest in preserving life, regardless of the length of life expectancy. Thus homicide statutes apply equally, whether the victim is 100 years old or 20 years old. The existence of a terminal condition would, however, justify refusal of treatment where treatment becomes futile (would not appreciably extend life) or otherwise makes lifesaving treatment impractical. Experimental treatment A strong argument can be made that parents should not be forced to accept for their children, truly experimental treatment. Requiring an experimental treatment would provide a source of research subjects, imposing an obligation to make the infant a human guinea pig. Parents of a child suffering a life-threatening condition will often seek experimental treatment as a last hope, but such treatment should not be photo by Nancy Morgan Prof. Ste-ven R. Smith imposed against the parents' will. Risky treatment At some point, the risk of lifesaving treatment may become so significant as to actually reduce the child's life expectancy. The decision to accept treatment is then based on a comparison of the relative chances for survival as a result of treatment or nontreatment. Here the choice is to promote the infants life, and the treatment may be withheld to maximize the chances for the longest period of survival. This differs dramatically from the before-mentioned decisions to withhold treatment described above where the decision to refuse treatment is made in order to minimize the infant's life expectancy. Trading quality for quantity When the risk is that the treatment will dramatically reduce the infant's ability to appreciate and enjoy life, then a true "quality of life" versus "quantity of life" issue is presented. These decisions are fundamentally different from withholding treatment to cause death. These decisions, in effect, result in trading some length of life (or the risk of shortening life) for some improvement in the life that remains. These tradeoffs, common in medical treatment, are reasonable in infant nontreatment situations as long as the improvement in life quality is substantial compared with the level of risk to life, that is, where there is a legitimate and reasonable improvement in the quality of life resulting from nontreatment. Giving pain palliatives when there is some risk they may cause the early death of an infant may be justified on the grounds that the quality of life is improved even at the risk of shortening it somewhat. This is a much different concept than giving the pain palliative, even in the absence of significant pain, to cause the death of the infant. Treatment decisions that risk shortening life for the sake of quality of life, (e.g., a life with less pain), require a comparison of a life with pain to a shorter life without some of the pain. Comparing these two lives, although difficult, probably calls for judgments closer to the range of human experience than an effort to judge, in some absolute terms, whether a life is worth living at all. Standards for withholding treatment Thus it appears inappropriate to withhold lifesaving treatment from an infant because the life of the child is not worth living or because the infant's existence places too great a burden on the family or society. These two reasons for not providing treatment are not so much treatment decisions as decisions to take advantage of a life-threatening condition to cause the death of the infant. It does seem permissible to withhold lifesaving treatment if: (1) the treatment would be futile in that there is no reasonable hope it can extend significantly the life of the infant; (2) the proposed treatment is experimental; (3) the treatment is so risky that it cannot be said to maximize the infant's life expectancy; or (4) the probability that the treatment will cause substantial pain or suffering is not offset by the corresponding probability that it will increase the length of life. Whether to let nature take its course Acti-ve and Passi-ve Euthanasia A distinction is commonly made between passive euthanasia (death caused by inaction) and active euthanasia (action taken to cause death). The active/passive euthanasia distinction is somewhat artificial in many infant care decisions. There seems to be no real difference between (A) taking direct action to cause death and (B) withholding treatment when the purpose of inaction is to cause death. The decision to withhold treatment is being made by those responsible for the care of the child and the failure to provide for medical care necessary to sustain life is a breach of the duty of care. The concept of "letting nature take its course" (e.g., letting an untreated infection or bowel obstruction cause the death of an infant) suggests that it is appropriate to permit death to occur by inaction (natural causes) when it would be inappropriate to directly cause death. As a general principle, however, this broad let nature take its course proposition is unacceptable. We surely are not willing to "let nature take its course" by letting an infant starve to death, nor drown if it fell into a lake, nor freeze to death by letting it wander into the elements. In fact, we are not prepared to let nature run its course by refusing to treat a serious infection with antibiotics if the infant is normal. The duty of parents is to protect their (continued on page 6) --- 6 Louisville Law Examiner, October, 1985 Hicks Brings Teaching Experience To U of L By Joel D. Zakem Although this is his first tenure track teaching position, law school teaching is not entirely new to Professor Renardo L. Hicks. As part of his LL.M. program in Legal Education at Temple University, Hicks taught classes for two years. Hicks recently began his first semester as an Assistant Professor at U of L, teaching night classes in Criminal Law and Professional Responsibility . "The night classes have worked out well, so far," said Hicks. "I have all day to be with my family. " Hicks, who is married and has two daughters, added that, while he is satisfied now, "I'm not sure that I want to teach only night courses forever." The enthusiasm of the students at U of L has impressed Hicks. He also expressed satisfaction at the. size of his classes. "At Temple, the Evidence class I collaborated in teaching had 175 students," he said. '·'Here, with 52 people taking Criminal Law and 24 enrolled in Professional Responsibility, the classes are more manageable." Hicks said that one of his teaching philosophies is that different subjects require different teaching methods, and he plans to tailor his teaching to fit the course. "At Temple, I was able to experiment with various teaching methods including the use of simulations, the case method, and, where appropriate, role playing," he said. While looking forward to becoming a tenured professor at U of L, Hicks admitted to being a ''trial lawyer at heart." "Once tenured, I hope to do more trial work," he said, "even if I have to do it for free." At Temple, Hicks was an Associate in the Temple Legal Aid Office, where he handled approximately 30 cases a year as well as supervising some students. While going for his J.D. at Northeastern, Hicks participated in a variety of co-op programs which included doing research for the Department of Revenue, clerking for a federal magistrate, acting as a student attorney in the Public Defender's office, and working at a Withholding Treatment (from page 5) children against such life-threatening "forces of nature." If a parent does not have a duty to provide medical treatment because the life of the infant is viewed as not worth living, logic suggests that the parent hould be able to decide on active euthanasia. Indeed such administration may be viewed as humane for the same reasons that withholding treatment is viewed as humane: active euthanasia enables the infant to avoid a life not worth living or filled with pain . In the example of the infant with the bowel obstruction, failure to perform surgery will result in a period of painful waiting for an almost uncertain death . This pain could be avoided by the administration of euthanasia. The infant's quality of life while awaiting death would be even worse than the low quality of life with treatment. If one accepts this line of reasoning, active euthanasia would not be limited to merciful shortening of the lives of only those infants with poor life quality who fortuituously develop other lifethreatening diseases. If a Down's Syndrome or Trisomy 13 child has such a poor quality of life that lifesaving treatment can legitimately be withheld, it seems unreasonable, and even unfair to the infant, to require that he develop a life-threatening disease ending his life. The above should not, of course, be taken as an endorsement of active euthanasia. It is meant to suggest that the blanket distinction between active and passive euthanasia cannot be supported when the purpose of withholding treatment is to end a life. Such decisions are not merely treatment decisions. They are decisions to use the life-threatening condition as the means of terminating the life and, when made by those with the duty of care, this nontreatment is similar to direct euthanasia. Decision-Makers and Procedures Standards governing nontreatment decisions will be effective only if those making treatment decisions actually apply the proper standard. As we noted earlier, there is reason to believe that a number of nontreatment decisions are made which violate what the law apparently requires in terms of treatment. At the very least, these medical decisions are being made without any serious effort to the requirements of the law . In some cases, the decision-making process may be ineffective either because the physician does not adequately consult with the parents or because the parents or the physician have interests which conflict with the best interest of the child. Although well-intentioned, they may find a defective infant emotionally difficult to accept, and an understandable sense of anger and guilt may interfere with their ability to make treatment decisions in the child's best interest. They may not wish or be able to support the child, or they may see the child as disruptive of the family or marriage. It is hard to imagine a time when parents are less likely to be emotionally well-suited to make life and death decisions in the best interest of a child than shortly after they realize that the child may be seriously defective. The critical life and death nature of the decision, the evidence that decisions have been made in the past without any serious efforts to determine whether they conform to the law, and the potential conflict of interest between the child and the decision-maker suggests the need for a review of nontreatment decisions which may result in the death of the child. A judicial review to determine whether nontreatment decisions adhere to legal standards might be desirable, but such a system would undoubtedly be so cumbersome and slow that it would be ineffective in many cases. The federal three-person firm in Philadelphia, where he occupied the second seat at a number of trials. For now, however, teaching is Hicks' primary concern. "I'm on a tenure track," he said, "and I'll do whatever it takes to be tenured." photo by Nancy Morgan Professor Hicks makes a point. government, and many commentators, have suggested that an ethics committee might be able to respond more quickly. But the diversity of backgrounds which would make such a committee valuable might also make it extremely difficult to convene quickly. An alternative would be to have a review team consisting of a physician and an attorney. The attorney would provide expertise in applying the legal standards and the physician an independent medical view. Treatment could not be withdrawn or withheld unless both members of the team certified that nontreatment was appropriate, the attorney determining that legal standards were met and the independent physician determining that the medical conditions of the infant had been assessed correctly. If the team were appointed by a court, and had the responsibility of reporting back to the court, this process would provide for a timely review and, at the same time, would offer significant assurance to the treating physicians that they were not violating the law in withholding treatment. The attorney could bring unresolved legal issues to the attention of the courts. Such an approach would, of course, require physicians to give notice before withholding lifesaving treatment. The attorney and independent physician review appears to have real promise. It avoids cumbersome court and committee procedures and allows an informed interdisciplinary review of critical nontreatment decisions. Such a review process, using narrowly defined nontreatment standards, might be established by hospitals in an effort to meet their obligations to avoid discrimination against handicapped infants. In addition, some formal reporting of nontreatment decisions is appropriate. All states now have child abuse reporting statutes requiring medical personnel to report suspected child abuse or neglect. Some states require reporting of abortions or certain prescription drugs. Withholding lifesaving treatment is a matter of even greater importance than any of tliese because it involves the death of a human being. Requiring the report of such nontreatment seems quite reasonable in light of the gravity of the decision and the difficulty of adequately enforcing legal standards without such reports. Decisions to withhold lifesaving treatment from an infant should be recorded along with the reasons and basis for the decisions. Under this system, the records would be subject to court review. Failure to follow adequate standards or process would leave the physician or parents open to legal sanctions, although not necessarily charges of criminal homicide. Unless criminal action is undertaken, the reports would remain confidential and not available to the public, thus protecting the privacy of the infants and parents. Some physicians and others claim it is inappropriate for a court or other government agency to "interfere" with the family's decision to withhold treatment; this claim is not valid when the consequence of the decision is the death of the infant. There is broad agreement that such interference is highly desirable when the infant is "normal," and different rules should not be justified on the basis of a child's handicap. An expeditious review, applying reasonably clear standards, would not seriously interfere with the legitimate autonomy rights of the family and would protect important rights of the infants. A slightly different version of this article was originally published in the July, 1984, issue of Empire State Report, and is Copyright 1984 by Empire State Report, and it is reprinted with their permission. ' - Louisville Law Examiner, October, 1985 CALI Offers Computerized Help To Students By Tom Ransdell So, you say that old common law just isn't user friendly? Rules, rules, and more rules. Do they blur together like the colors of the spectrum? Need some help sorting those hair-splitting legal concepts? Meet CALI, computer assisted legal instruction. Equipped with expertly written programs, the computer can be a genuine study aid to the law student. And, contrary to popular belief, you don't need an engineering degree to operate one. All you need is a few minutes to orient yourself and an index fi nger to operate the machine. The programs can be used to clarify confusing legal concepts or to polish your conceptions in preparation for exam taking. The format is usually a simple one. The computer offers a hypothetical situation and then· asks a question. The student then answers in either multiple choice form or a short statement. The computer then tells· the student whether or not their answer was correct and offers a model answer with the relevant issues complete with references to rules, treatises, and case law. Evidence, Torts , Trial Advocacy, Insurance Law, and Commercial Transactions; but there aren't any programs presently written which ¢over the other major legal subjects. Another problem is that, with the exception of evidence, the programs require the use of a study manual. This means extra reading which may or may not be immediately beneficial to the study of law. "It's not a panacea," says Professor James Merritt. "Some students who have worked with it have felt that their time could have been just as well spent actually studying." Be that as it may, this student found that CALI could be a useful reviewing technique. The necessary reading of the manuals does not occupy much time and often the reading consists of concise, well-defined ruJes of law that are exactly what the student wishes to review anyway. Admittedly, it would have been more difficult if Professor Merritt hadn't been willing to help me get started , but he showed me how to turn the computer on and off, how to begin the program, and the rest was as easy as using a typewriter. The biggest flaw I found with CALI is that the multiple choice answers may be too easy when you compare them to a grueling three hour law exam. 7 There are some pitfalls. For one, very few of the programs cover an entire subject. Instead they cover narrower topics, such as the use of intent in torts, or the concept of hearsay. Also, the subjects covered are limited. There are programs covering Civil Procedure, Professional Responsibility, If any student is interested in judging the benefits of CALI for themselves they may contact Professor Merritt in room 246. photo by Nancy Morgan Professor James Merrit demonstrates CALI. UNIVERSITY OF SANTA CLARA SCHOOL OF LAW 1986 SUMMER LAW STUDY ABROAD TOKYO, JAPAN: June 18-August 8 Emphasis on U.S.-Japanese trade. Courses in Japanese Legal System, International Business Transactions, Comparative Law (Intellectual Property). Internships available with Japanese law firms and corporate law departments. Instruction primarily by Japanese professors and practitioners. Visits to governmental offices and company legal departments. STRASBOURG,FRANCE GENEVA, SWITZERLAND: June 11-August 1 Emphasis on international human rights and public international law. Taught by recognized experts from around the world. In cooperation with International Institute of Human Rights (Strasbourg) and Henry Dunant Institute (Geneva). Courses on Sources of International Law, International Organizations, Human Rights, Immigration Law, Soviet Legal System, Humanitarian Law and International Arbitration. Internship possibilities. ALL COURSES ARE TAUGHT IN ENGLISH. APPROVED BY THE AMERICAN BAR ASSOCIATION For a detailed brochure, contact: Institute of International & Comparative Law University of Santa Clara School of Law Santa Clara, California 95053 (408) 554-4162 OXFORD, ENGLAND: July 30-August 1 0 Students live in 15th century Oxford College and are taught by Oxford professors in Oxford Tutorial Method. Course offerings include Jurisprudence, European Economic Community Law, Legal History, Computers and the Law, International Human Rights, and various comparative courses in areas such as Constitutional Law, Real Property, Torts and Labor Law. HONG KONG: June 9-July 30 Trade and commercial relations between Hong Kong, China, and the rest of East Asia is the focus of the program held at the University of Hong Kong. Practice component affords option of either a writing tutorial or an internship with a Hong Kong law firm, corporate law office or government agency. SINGAPORE-ASEAN: June 9-July 30 Focus of the program to be held at the National University of Singapore will be the legal systems and cultures as well as the legal aspects of international investment and development in the countries of the Association of Southeast Asian Nations (ASEAN) (Singapore, Indonesia, Thailand, Malaysia, The Philippines, Brunei). At our disposal are the resources of the National University of Singapore, The Asian-Pacific Tax and Investment Research Center, local and international faculty consisting of recognized experts in the subject areas, and law offices which deal in such matters on a daily basis. Internships required after the academic courses with Singapore and Bangkok (Thailand) law offices. To reserve your place, please include a $100.00 deposit. 8 Louisville Law Examiner; October, 1985 photo by Nancy Morgan Professor Leslie Abramson gets a unique view of his Criminal Detainers. U.S. Supreme Court Cites Prof. Abramson's Book A 1979 book authored by U of L Law Professor Leslie Abramson was recently cited in a United States Supreme Court opinion. Both the majority opinion, by Justice Harry Blackmun, and the dissent, by Justice William Brennan, referred to Abramson's book, Criminal Detainers. The case, Carchman v. Nash, can be found at 105 S. Ct. 3401 (1985). While the book has been cited in several decisions by other tribunals, Professor Abramson said that this is the first tiflle it was mentioned in a Supreme Louisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40292 Court decision. The cite was also a surprise for the professor. "The only inkling I had was that a research attorney on the Supreme Court's library staff called and asked whether a proposed statute in the book that addresses parole and probation detainers had been adopted in any jurisdiction," said Abramson. This was not the first time Abramson was cited by the high court. An article of his dealing with state taxation of exports was cited in a 1975 Supreme Court decision. John M. Harlan Louis D. Brandeis ' . tfii . .• ~ Louisville\~.· ~,. Law Examiner AMERICAN BAR ASSOCIATION A WARD FOR EXCELLENCE, 1984 Volume 11 Local Schools Discuss Courts Decision on Aid To Private Schools Page 1 U of L Experiments with Admissions By Performance Page 1 Brandeis Brief: Withholding Treatment To Terminally Ill Infants Page 4 Renardo Hicks Joins Faculty Page 6 October, 1985 Numhl'r I Photo by Nancy Morgan |
Subject |
University of Louisville. School of law University of Louisville--Students University of Louisville--Alumni and alumnae University of Louisville--Faculty University of Louisville--Employees Law students Law & legal affairs Law and legislation--Kentucky Law and legislation--United States Law libraries Legal education Libraries |
Location Depicted |
Louisville (Ky.) Jefferson County (Ky.) |
Date Original | 1985-10 |
Object Type | Newspapers |
Source | Various-sized print newspapers published by students of the University of Louisville School of Law. The print edition may be found in the University of Louisville Law Library or the University of Louisville Archives and Records Center. |
Collection | Law Library Collection |
Collection Website | http://digital.library.louisville.edu/cdm/landingpage/collection/law |
Digital Publisher | Law Library of the Louis D. Brandeis School of Law, University of Louisville |
Format | application/pdf |
Ordering Information | The publications digitized in this collection are the property of the University of Louisville School of Law and are not to be republished for commercial profit. To inquire about reproductions, permissions, or for additional information, email lawlibrary@louisville.edu. |
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