Terri Schiavo and the Limits of the Law

A very smart senior law professor once explained to me that we could have two types of legal systems: a shallow and wide one, with many decision-makers, which would flow like the Mississippi River, slowly, and have eddies and currents that go in the wrong direction, but not very far; or a deep and narrow one, where everything is a Federal Case, which would flow like the Colorado River through the Grand Canyon, full of white-water rapids, but all in the same tumultuous direction.  The shallow system has low transaction costs, and makes mistakes, but things move forward, and hard cases generally stay below the surface, out of the public eye.  This is usually what happens in these right-to-die situations, where a doctor follows the wishes of the family and accelerates a terminally ill patient to the other side, keeping the whole circumstance below the radar.  The Grand Canyon system has high transaction costs, and while it may make fewer mistakes, it can also spin out of control, and dump the litigants into the whitewater of popular passion. 

The Schiavo case is unusual in many respects, none the least of which is the level of attention on it.  This is beyond a Federal Case; it has the personal attention of the President, the Congress, and about every radio talk show host.  Worse, it has replaced the Michael Jackson case or the Laci Peterson case as the momentary Theater of the Absurd for popular culture. Very little of what is being discussed bares a resemblance to the true facts of the case.  Grand legal principals are extrapolated from very thin reeds. And the Federalizing of daily life continues apace. 

As they say, hard cases make bad law, and bad laws narrow our freedoms.

Comments

[Mel Richnick]

I'm personally impatient with lawyerly arguments on this subject. To me, the key question is do we really want to live in a Republic governed by those fighting to keep this poor woman alive? The “I’m better than you” crowd so fervently believes its moral compass as standing above mine, they are willing to do anything to see it prevail over mine. The law for them is there to serve their end, not guide their behavior. I don’t admire these people for their moral clarity. I fear them for what they are going to turn this society into if “I” let them. I do blame the liberals and their lawyers for this. They truly have lost their moral compass. And their default has turned the field of moral values over to a group of simple-minded zealots who will make our lives a living hell if given half a chance. Just because liberals are lost doesn’t mean these bible thumping nincompoops know the way. In the ever present choice between muddied pragmatism, and absolute moral clarity, it might help to recall that our founding fathers chose the former muchly fearing the latter.

[Eric Noel]

I wonder which legal system Richard Posner and his followers would favour in such a case? The shallow or wide one? If, according to Posner, the law strives to resolve a legal dispute in favour of the party to whom it is most valuable from an economic perspective, what would he say about this case?

The shallow system which would keep the case from the public eye and resolve in quickly and quietly would save the family members and taxpayers transaction costs, which is good according to economists.

The wider system costs the family and taxpayer more. However, the transaction costs to the family and taxpayer are not really a sunk cost; because the wealth is merely transferred to the professionals involved in litigating it (thus there is no net social loss of capital). Further, the media makes money by having something more to report that rakes in the ratings. As "sick" as it may be, is there also not an entertainment value to this whole media circus for the masses?

My view is that the law can never really be economically efficient because people are irrational when it comes to finances. In other words, they are not rational maximizers of their monetary wealth. Or, at the very least, there is a very subjective economic value to people's needs to express emotion. Why else would a couple spend tens of thousands in court fighting over property worth only thousands, upon separation?

Then again, is the job of the law really to reflect the morality of the majority? To increase freedoms, and if so, which, collective or individual? To ensure the social stratification of a given country does not come unglued? Or does it serve some deeper more arcane purpose? Or, all of the above? I am truely confused.

[yelnick]

The shallow one has lower transaction costs and fewer big mistakes, hence more in Posner's worldview. The media circus economic advantage is ephemeral, and leaves in its wake an expensive system for resolving these sorts of cases, hence over multiple cases is diseconomical. Consider the death penalty - it is more expensive to find for death than to incarcerate for life sentence, plus, the one type of crime which in a Posner sense has been shown to be deterrable by the death penalty, felony-murder, where without a death penalty there is no increased cost to kill the witness or victim to a non-murder felony (rape, robbery), is not clearly within the current 'heinous crime' standard for a death sentence.