poor joshua and why litigation can't save the world
Today in my Civil Rights Litigation class we talked about the "Poor Joshua" case (so called b/c of a comment in Justice Blackmun's dissent). Poor Joshua was a boy whose father beat him into a coma and whose mother sued the state because DHS didn't do more to protect him. Poor Joshua obviously makes a very sympathetic plaintiff, even Chief Justice Rehnquist, who wrote the majority opinion, allowed that the case inspired "natural sympathy," however, Joshua and his mother lost.
I sat back and listened as my very small class and my very animated professor debated the finer points of the opinion and I noticed something about our system that feels wrong. First, I noticed that everyone felt sympathy for Joshua and everyone was trying to wrangle with the law to get it to come out on his side. I was having the same feelings myself. However, I also noticed the limitations of the system in which all our arguments were taking shape. We all instinctively wanted to bring some culpability to the state for Joshua's injuries, but the vehicle of litigation was all wrong. It was like asking a room full of surgeons to weigh in on a possible treatment for chicken pox -- any surprise that the surgeons want to perform surgery even though that's obviously not a good solution?
If it hadn't been a *law* class, I would've asked that we all take a step back and look at the deeper issue. A parent abuses his child. Think of all the ways the state (the big village, as it were) could be involved positively and proactively to try and prevent something like the poor Joshua situation. Maybe free parenting classes, maybe community daycare, maybe Joshua's dad needed a better job, medical care of his own, substance abuse treatment, counseling, something. Or, maybe DHS by itself was perfectly situated to monitor and prevent child abuse, but maybe DHS doesn't get enough funding or training?
There's obviously a problem, but surgically removing the chicken pox is asinine and so is suing the state for damages because Joshua's dad gave him permanent brain damage. SK and I talked about America's litigiousness this summer. Those of us who were born and raised here might be surprised to know that *other* civilized, westernized countries don't use litigation like we do (like it's good for what ails you). I posited that we use litigation to make up for the lack of social welfare programs in this country. On a deep level we feel the state won't look out for us (in fact, most of us are conditioned to believe that's not the state's job), so we look out for ourselves by suing the state (or whomever else might be the best available deep pocket). Litigationism as opposed to socialism. Socialism gets stigmatized here in America, but look at the alternative we've created and tell me our way is really better. You can't.
I sat back and listened as my very small class and my very animated professor debated the finer points of the opinion and I noticed something about our system that feels wrong. First, I noticed that everyone felt sympathy for Joshua and everyone was trying to wrangle with the law to get it to come out on his side. I was having the same feelings myself. However, I also noticed the limitations of the system in which all our arguments were taking shape. We all instinctively wanted to bring some culpability to the state for Joshua's injuries, but the vehicle of litigation was all wrong. It was like asking a room full of surgeons to weigh in on a possible treatment for chicken pox -- any surprise that the surgeons want to perform surgery even though that's obviously not a good solution?
If it hadn't been a *law* class, I would've asked that we all take a step back and look at the deeper issue. A parent abuses his child. Think of all the ways the state (the big village, as it were) could be involved positively and proactively to try and prevent something like the poor Joshua situation. Maybe free parenting classes, maybe community daycare, maybe Joshua's dad needed a better job, medical care of his own, substance abuse treatment, counseling, something. Or, maybe DHS by itself was perfectly situated to monitor and prevent child abuse, but maybe DHS doesn't get enough funding or training?
There's obviously a problem, but surgically removing the chicken pox is asinine and so is suing the state for damages because Joshua's dad gave him permanent brain damage. SK and I talked about America's litigiousness this summer. Those of us who were born and raised here might be surprised to know that *other* civilized, westernized countries don't use litigation like we do (like it's good for what ails you). I posited that we use litigation to make up for the lack of social welfare programs in this country. On a deep level we feel the state won't look out for us (in fact, most of us are conditioned to believe that's not the state's job), so we look out for ourselves by suing the state (or whomever else might be the best available deep pocket). Litigationism as opposed to socialism. Socialism gets stigmatized here in America, but look at the alternative we've created and tell me our way is really better. You can't.
posted by reasonably prudent poet at 1:52 PM
3 Comments:
Disclaimer: I'm a very new attorney who maybe or maybe not knows what she's talking about...
...that said, I often feel like I've failed when I have to go to court for a hearing to resolve a matter. Not that I'm failing as a _lawyer_, but as an advocate for my client trying to get the best result possible. Sometimes I can -- outside of the courts -- be really creative and craft win-win solutions. If we go to court, a lot of good options are no longer on the table, and even if my client wins, there's still a net loss.
It drives me crazy when dealing with attorneys who only want to go to court and let the judge decide.
ok, I couldn't resist another observation on your observation: big government solutions. I'm not a big fan of big government solutions (toss me in a political category if you wish, it won't fit), but I operate under a simple premise:
Where there is a crime, everyone is guilty - from 'The State/Motherland' to the neighbour to the parents of the person who has done a wrong; morally. The thing that Law is supposed to do is punish the *most* guilty. This is how I rationalize the differences between law, justice, and ethics/morals.
Morally, we're all culpable to some degree because maybe we don't pay attention to the person next to us as much. Now we can blame the State for not doing X, Y and Z, but at some point it would be refreshing to see people look at the circumstances - as they do in a courtroom - but instead of 'trying' the defendant, 'trying to find what screwed up'.
Of course, if such a thing were considered worthwhile, we'd probably need less courts. In fact, if the 'little villages' quit depending on 'big government' so much and instead looked to themselves, the Poor Joshua case would not be a matter of legal discussion but a matter of ethical discussion - as you suggest. :-)
Obviously, there was no violation of due process in the case. On that, I agree with the SC. However, is there not some civil law under which the state can be held responsible? Or some changes that can be made to the process to prevent such an occurrence in future? (In many states, finding that a child is being physically abused by a parent is grounds for immediate removal from parental custody pending a hearing.) Finally, what were his mother's and family's responsibilities in this case? Surely, there was some other alternative available to protect the child? Obviously, we should expect assistance from the state in such matters but should we completely abandon personal and community responsibility?
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