...it's not dark yet, but it's gettin' there...

March 22, 2005

Dura Lex Sed Lex II

i've read Judge Whittemore's ruling on the Shiavo case. The question before him was narrow, and i am persuaded by his reasoning. Reluctantly and sadly persuaded.

Judge Whittemore was constrained by the well established law regarding the issuance of restraining orders and injunctive relief. It cannot be otherwise. Ultimately i blame the trial court for getting it wrong, but the appelate process has limited ability to question the findings of fact made by the original trial court.

"The law is hard, but it is the law."

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.”

Posted by annika, Mar. 22, 2005 |
Rubric: Legal Mumbo Jumbo



Professor Hewitt disagrees with you. Check out his site. I'm not a lawyer and don't understand the procedure surrounding all of this. At the end of the day, though, we are killing a fellow human in a horrific manner. The entire episode is sad. Very sad. Wish I had something more learned or clever to add to the conversation.

Posted by: Blu on Mar. 22, 2005

What about the de novo case?

Posted by: Casca on Mar. 22, 2005

I think the problem is that the lawyers for the Schindlers are asking only for a temporary restraining order (TRO), which brings in the "substantial likelihood of prevailing at trial" They probably should have asked for an expedited hearing at the same time, since the law specifies that the federal courts should do a hearing de novo, when a hearing is called for.

Posted by: JJR on Mar. 23, 2005

A week or so ago it became unconstitutional for Congress to check the authority of the courts at all, in any way, so they aren't constrained by anything, they can do whatever they want.

Posted by: Dave Munger on Mar. 23, 2005