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A Better Way to Die

May 11, 2017 by pgd1

Unless the way healthcare is organized changes, most people will continue to suffer unnecessarily at the end.  In the United States, many deaths are preceded by a surge of treatment, which is often pointless.  The way healthcare is funded encourages over-treatment.  Hospitals are paid for doing things to people, not for preventing pain.  And not only patients, but those who love them, suffer.

The chief responsibility for the failures of end-of-life care lies with medicine.  Doctors often neglect palliative care, which involves giving opioids for pain, treating breathlessness and counseling patients.  (The name comes from the Latin term palliare, as in “to cloak” pain.)

The way healthcare providers are funded often sidelines palliative care.  In America, hospitals suck up a big share of spending, even though the seriously ill are often better treated elsewhere.

In America, some insurers are realizing that what would be better for patients would be better for them, too.  In 2015, Medicare announced that it would pay for conversations about end-of-life care between doctors and patients.

In 2010, Ellen Goodman, an American author, founded the Conversation Project, which started with people gathering to share stories of the “good deaths” and “bad deaths” experienced by their loved ones.

Experiences of death are being shared online.  Dying Matters is a popular forum.  In 2013, Scott Simon, a journalist, tweeted from his mother’s bedside as she died.

Bringing death “within the pale of conversation” is needed to overhaul end-of-life care.1

by Patrick Gaffney

by Patrick Gaffney

1 This blog contains excerpts from “A better way to care for the dying”. The Economist. April 29, 2017.

Florida Legislature Seeks Term Limits on Judges

April 20, 2017 by pgd1

The Florida house has passed a constitutional amendment that would ask voters to impose term limits on appellate judges and state Supreme Court justices.  The state Senate has yet to act on this amendment and it has been suggested that the Senate should reject this measure as a blatant assault on the courts.1

This measure would be the first of its kind in the country to force appellate judges and justices out of office after 12 years.  For judicial term limits to become part of the Florida constitution, the amendment would have to pass the Senate and then win at least 60% of the vote in the November 2018 general election.

There is no doubt that this is a partisan attack on a nonpartisan branch of government, and the rhetoric about state judges serving for life glosses over the truth.  Long term appointments bring stability, consistency, and institutional knowledge to the highest levels of the courts.

Recent state court rulings have invalidated laws covering Worker’s Compensation, abortion rights, capital punishment, and redistricting.

The legislature is wanting to get even.  However the Florida bar, business interests, and lawyers on the right and left oppose term limits for appellate judges and justices.  They convincingly argue that the brightest trial judges and lawyers will not seek appointments to the appellate bench if they could be pushed out before age 60 and have to start over with no clients or law practice.  There would also be a constant turning over of appellate judges because of term limits.  This makes no sense.

by Patrick Gaffney

by Patrick Gaffney

1 This blog contains excerpts from an editorial of the Tampa Bay Times republished by the Miami Herald on April 5, 2017.

The Remarkable Aaron Burr

April 13, 2017 by pgd1

“Law is whatever is boldly asserted and plausibly maintained.”
- Aaron Burr

Aaron Burr was the third vice president of the United States, serving under President Thomas Jefferson.  Burr fatally shot his rival, Alexander Hamilton, during a duel.

As a revolutionary soldier, Burr joined Benedict Arnold’s men in their expedition to Quebec.  By the spring of 1776, Burr had achieved the rank of major, and was appointed to serve under George Washington at his home in New York.

In 1800, Burr ran for the U.S. presidency with Thomas Jefferson.  Because they each received the same amount of electoral votes, members of the House of Representatives were left to determine the winner.  When the House met to discuss the election, Burr’s rival, Hamilton, vocalized his support for Jefferson and his disapproval of Burr.  In the end, Jefferson secured the presidency and Burr became vice president.  Burr was incensed, believing that Hamilton had manipulated the vote in Jefferson’s favor.

Nearing the end of his term as vice president, Burr ran for the governorship of New York, but lost.   Again, he blamed Hamilton for besmirching him as a candidate, and, eager to defend his honor, challenged Hamilton to a duel.  Hamilton accepted, and the face-off took place on the morning of July 11, 1804; it ended when Burr shot Hamilton to death.  The public was outraged. Burr fled New York and New Jersey but eventually returned to Washington, DC where he completed his term safe from prosecution.  The indictments in the case never reached trial.

In 1807, Burr was brought to trial on charges of conspiracy and high misdemeanor, for leading a military charge against Spanish territory and for trying to separate territories from the United States.  Chief Justice John Marshall acquitted Burr on the treason charge and eventually revoked his misdemeanor indictment, but the conspiracy scandal left Burr’s political career in ruins.

Burr spent the four years following his trial traveling throughout Europe, attempting unsuccessfully to garner support for revolutionizing Mexico and freeing the Spanish colonies.  He died under the care of his cousin on September 14, 1836, on Staten Island, New York.1

by Patrick Gaffney

by Patrick Gaffney

1 This blog is taken from Aaron Burr Biography.  Retrieved from:

Understanding The Constitution

March 30, 2017 by pgd1

State Representative Dr. Julio Gonzalez, a Venice republican, has proposed legislation to allow the Florida legislature to override Florida Supreme Court decisions.  This proposed law has caused much discussion.

The Federalists Papers, No. 78, provides that the nonpolitical branch having “neither force nor will, only judgment” must have power “to declare all acts contrary to the manifest tenor of the constitution void.”  The Federalists Papers are a foundation text of constitutional interpretation and frequently cited by American jurists.  Federalists No. 78 indicates that the federal judiciary has the power to determine whether statutes are constitutional, and to find them invalid if in conflict with the Constitution.

This principle of judicial review was cemented by Chief Justice John Marshall in the foundational United States Supreme Court case of Marbury v. Madison.

Representative Gonzalez cites Thomas Jefferson in support of his legislation.  Jefferson proposed that judicial review is antithetical to republican government.

Unfortunately for Representative Gonzalez’s proposed legislation, history shows us that Thomas Jefferson and the anti-federalists lost this argument when the United States Constitution was ratified.  Representative Gonzalez, a surgeon and a lawyer, has a misplaced understanding of our Constitution as defined by the Supreme Court.

by Patrick Gaffney

by Patrick Gaffney

Trump Chooses Sessions

March 24, 2017 by pgd1

Donald Trump has chosen Alabama Senator Jeff Sessions as the 84th Attorney General of the United States.

In 1986, Sessions was nominated to be a judge of the U.S. District Court.  Coretta Scott King, the widow of Martin Luther King, Jr., wrote to the Senate Judiciary committee to oppose the nomination.  Sessions’ nomination failed.1

Sessions became only the second nominee to the federal judiciary in 48 years whose nomination was killed by the Senate Judiciary committee.

Accusations of racism have dogged Sessions’ career.  His former colleagues testified Sessions used the N- word and joked about the Ku Klux Klan, saying he thought they were “OK, until he learned they smoked marijuana.”2

Sessions was an early supporter of the presidential candidacy of Donald Trump and was a major policy adviser to the Trump campaign especially in regard to immigration and national security.

Sessions was a leading congressional opponent of illegal immigration and a proponent of reducing illegal immigration.

Upon the death of Antonin Scalia, Sessions said “The Senate should not confirm a new Supreme Court Justice until a new president is elected.”

More recently, Sessions recused himself from all investigations involving the 2016 presidential campaign after officials from both parties called for it.  The outcry came after news broke that then Senator Sessions failed to disclose that he met with a Russian envoy during his confirmation hearings to become attorney general.

by Patrick Gaffney

by Patrick Gaffney

1 Wikipedia:  Jeff Sessions

2 Phillips, A. January 10, 2017. “10 things to know about Senator Jeff Sessions, Donald Trump’s pick for Attorney General”. The Washington Post.

Marrying Outside of One’s Religion

March 16, 2017 by pgd1

In the United States, it is not uncommon for people to marry outside of their religion. However, Indonesia is one of about two dozen countries with no provision for civil marriages. Others include Israel and almost all of the Arab states.

In these countries, only unions conducted according to officially recognized religions can be registered.  In Indonesia, for example, children of unregistered unions cannot get birth certificates, without which they struggle to receive health care or schooling.

According to The Economist magazine, some couples of differing faiths, or none, go abroad for a civil ceremony.  Each year about 3,000 couples from the Middle East get married in Cyprus, which brands itself the “island of love”.

It has been suggested that part of the problem is political. Governments often fear angering politically powerful religious groups. In Lebanon, marriages and other matters of family law, such as divorce and inheritance, are left to religious courts of 18 Muslim, Christian and other sects.

Religious leaders fear that an interfaith marriage would end up with one of the partners converting.  In many places, anyone who dares to wed across religious lines faces ostracism, and perhaps violence.1

Such restrictions against the freedom to marry seem unfair to us in the West. I have witnessed many successful marriages that crossed these artificial barriers.  Who knows the ways of the human heart?

by Patrick Gaffney

by Patrick Gaffney

1 “Where Rashid and Juliet Can’t Wed”.  The Economist.  February 18, 2017, p. 52.

Chief Justice Roberts and Institutional Legitimacy

March 9, 2017 by pgd1

Chief Justice John Marshall sought to build the legitimacy of the Supreme Court by reaching unanimous decisions by ruling narrowly on issues before the Court.  According to Jeffrey Rosen, the President and CEO of the National Constitution Center, current Chief Justice John Roberts has tried to do a similar thing.  “He was going to try to persuade his colleagues to put institutional legitimacy above all . . . it is important for the Court to be perceived above politics.”

Unfortunately, it hasn’t worked that way for Roberts who in his first term had more five-four decisions than any other term, and opinions included personal attacks between justices.

Then came the Citizens United Decision that struck down the federal campaign contribution limits on corporations.  Rosen said it had been reported that Roberts favored a narrow decision, but Justice Anthony Kennedy wanted a broader decision that equated corporate speech with free speech of natural persons and, hence, striking down contribution limits.  Chief Justice Roberts had to assign the opinion to Kennedy to keep his majority, according to Rosen.

“That just shows much of Roberts’ ability to forge consensus is contingent on the judicial philosophies and inclinations of the other justices . . .”1

Roberts’ inclinations can be seen on the ruling on the Affordable Care Act, where he wrote the majority opinion striking down the individual mandate under the commerce clause of the Constitution, but upholding it as a tax.  According to Rosen, Roberts did this out of a concern for institutional legitimacy.

by Patrick Gaffney

by Patrick Gaffney

1 Blankenship, Gary.  “Rosen talks about judicial history, the Roberts’ court in modern politics.”  The Florida Bar News.  February 15, 2017.

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