The right to die: state courts lead where legislatures fear to tread

The right to die may be among the most legally complex and culturally sensitive areas of civil rights to emerge in our time. The thorny issues associated with a terminally ill individual's right to self-determination, and the disposition of individuals who are incompetent to make right to die decisions for themselves, promises to keep all parties involved - health care professionals, medical ethicists, families, lawyers, judges, and state legislators -busy for some time to come. To this point, the state courts have taken the lead in the right to die debate, while the state legislatures have tended to drag their collective feet. This article lays the case law groundwork for right to die decision making, then goes on to assay the legislative responses to the issue that have been rendered in the fifty states.     

Diffusion and Diversity: Federalism and the Right to Die in the Fifty States

Right-to-die issues—from the right to have life-sustainingtreatment withdrawn to the right to assisted suicide—arebecoming important sources of state policy activity. Withoutmuch federal instruction, some state courts have constructeda general consensus position for other courts to follow usingthe federal Constitution to legitimize their decisions. Statelegislatures have accomplished less. Statutory diversity wasthe rule until recently, with legislatures passing a rich varietyof generally conservative rules. Lately, with the pressure fromrights-oriented interest groups and professional organizations,state legislators have been edging closer to the more liberalpattern of policy charted by judges of the state supreme courts.Policymaking that applies to assisted suicide may be expectedto follow the same pattern: the federal government will remainsilent while the state courts take the lead using the U.S. Constitutionas ammunition. The state legislatures can be expected to trailbehind, catching up to the courts only after statutory diversityis found wanting.     

Competing Approaches to the Study of American Federalism and Intergovernmental Relations

The development of theory in the study of American federalismand intergovernmental relations has long been marked by divergentapproaches. This article reviews the literature produced byfive "schools" within the field: (1) dual federalism, (2) cooperativefederalism, (3) pragmatic federalism, (4) noncentralized federalism,and (5) nation-centered federalism. As different as these approachesare, scholarly work in this field has made only sparing useof two other potentially useful approaches: distributive justiceand public choice theory. This article suggests how these alternateapproaches might contribute to reinvigorating a field that appearsto be otherwise at an intellectual impasse.     

Congress and the political expansion of the U.S. districts courts

Expanding the number of U.S. district judgeships is often justifiedas a response to expanding caseloads. Increasing judgeshipsduring unified government, however, allows Congress and thePresident to engage in political (patronage and ideological)control of the federal district courts. This paper examinesempirically the relative importance of caseload pressure andpolitical motives for Congress to expand the number of federaldistrict judgeships. We demonstrate that politics dominatesthe timing of judgeship expansion in the U.S. District Courts.We also show that both politics and caseload affect the actualsize of those timed expansions. In particular, we find thatbefore 1970, Congress seemed to have strong political motivationsfor the size of an expansion. After 1970, Congress became muchmore attentive to caseload considerations.