Tuesday, April 24, 2007


Legal Blog Watch

The Faith-Based Supreme Court

Call it the Catholic connection. As University of Chicago law professor Geoffrey R. Stone points out in a post at the American Constitution Society's ACSBlog, religious affiliation may be the key to explaining last week's Supreme Court decision in Gonzales v. Carhart, upholding a federal law prohibiting so-called partial birth abortions, otherwise known as "intact dilation and evacuation" or "intact D & E."

In its decision upholding the law, the majority noted that Congress had made several findings to support the legislation. The majority accepted those findings, even though, as Hazard writes, every other federal court that reviewed them found them to be "unreasonable, unbalanced, polemical, and unsupported by the facts." If so, how then to explain the decision? Hazard offers what he calls a "painfully awkward observation":

"All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is 'immoral' and may be prohibited even without a clear statutory exception to protect the health of the woman."

For Hazard, who served as a law clerk to Justice William Brennan in 1973, the year he joined the majority opinion in Roe v. Wade, last week's decision stands in stark contrast to Brennan's struggle to separate his personal religious views from his responsibilities as a justice. As did Justice Ginsburg in her dissent in Gonzales, Stone quotes from the Court's 1992 decision Planned Parenthood of Southeastern Pa. v. Casey, where it said:

"Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

To which Stone adds: "It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example."

Posted by Robert J. Ambrogi on April 23, 2007 at 03:08 PM | Permalink | Comments (0)

Are You Ready for Litigation Avoidance?

Should litigation be the first resort of lawyers or the last? At his blog Human Law Mediation, Justin Patten considers this question after reading an article in The Telegraph about U.K. entrepreneur Chris Gorman and the protracted litigation in which he and a business partner were accused of "stealing" a chain of card and gift shops. Gorman and his partner won the case, but not before going through what The Telegraph called a "public ordeal," a "great spectacle" and "a bruising personal experience for those concerned." As the article quotes Gorman:

"My biggest frustration was that there was £10m costs between the four parties. No one gained anything from it. Think what the money could have done for charity."

Precisely. Which leads Patten first to an observation and then a question. The observation:

"Litigation is and for the foreseeable future will be a necessary step for many firms but it should be a point of last resort than a 1st point of call. The key question to ask here is whether there was an alternative to litigation. (I think Gorman indicates there was.)"

For Patten, that observation raises the question:

"Are lawyers really ready to embrace litigation avoidance? I wonder if the lawyers most likely to see the benefits of this will be the in-house lawyers who may be more aligned to the commercial needs of their firm than those lawyers in private practice."

As for lawyers' readiness to embrace litigation avoidance, I suspect we all know the answer.

Posted by Robert J. Ambrogi on April 23, 2007 at 03:05 PM | Permalink | Comments (0)

Non-dad Must Pay Child Support

We have all heard of deadbeat dads, but what about a non-deadbeat non-dad? At his blog May it Please the Court, J. Craig Williams comments on the case of a Florida man who learned too late he was not the father of the son he thought was his. As originally reported in The Christian Science Monitor, through a DNA test 16 months after his divorce, Richard Parker learned that someone else had fathered the 3-year-old boy. Facing court-ordered child-support payments of $1,200 a month for 15 years, he immediately turned to the courts, claiming fraud by his wife. His case took him all the way to the Florida Supreme Court, which issued its decision in February in Parker v. Parker. Williams tells what happened:

"The Florida justices ruled 7-0 against Richard Parker. The Court ruled Parker must continue to pay $1,200 a month in child support. Parker's child support payments will total more than $200,000 over 15 years to support another man's child. Unfortunately, however, Florida has a one-year statute of limitations to prove fraud after a divorce, and Parker didn't file in time."

Is this the correct result, Williams asks, or should the biological father pay for the child's support? For Parker, the question may still be more than academic. The Monitor reports that the Florida Legislature last year passed a law that allows men to use newly discovered paternity evidence to overturn a court order to pay support for someone else's child. Supporters of the law see it as a major step toward justice for deceived ex-husbands, the Monitor reports, but critics say it poses a potential danger to the well-being of mothers and children.

Posted by Robert J. Ambrogi on April 23, 2007 at 03:04 PM | Permalink | Comments (0)

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