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It was late in November of 1972. Roe v. Wade had been under consideration at the Supreme Court for a year, with release of the opinion now less than two months away. Justice Lewis F. Powell, Jr., one of Justice Harry A. Blackmun’s most steadfast allies throughout the decisional process, received a memo from one of his law clerks critiquing Blackmun’s most recent draft. “HAB has placed considerable emphasis on the role of the physician and the free exercise of his professional judgment,” the law clerk, Larry A. Hammond, wrote. . . .
On September 11, terrorists fly hijacked airliners into the World Trade Center and the Pentagon. Over 3,000 Americans are killed. The nation—indeed the world—is stunned. The French paper Le Monde runs the headline: “We are all Americans.” There are candlelight vigils outside the United States Embassy in Tehran.
The American government responds immediately. On September 18, Congress passes a joint resolution authorizing the President
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The lawyers of the Executive branch are also at work. A September 25 memorandum from Deputy Assistant General John Yoo of the Office of Legal Counsel (OLC) asserts that the President can “deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.” The Framing generation, the memo explains, “well understood that declarations of war were obsolete.” No statute, it concludes,
“can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” . . . .
For more information about Professor Roosevelt’s Donahue Lecture (which served as the basis for this article) please click here.
A successful negligence action requires a plaintiff to prove that the defendant owed a duty of care and then breached that duty by creating an unreasonable risk of harm. Physicians owe patients a duty to inform them of the consequences of proposed medical treatment due to the nature of the physician-patient relationship. In Coombes v. Florio, the Massachusetts Supreme Judicial Court (SJC) examined whether a physician’s duty of care extends to third parties harmed by the physician’s failure to warn a patient of a prescribed medication’s side effects. The court concluded that a physician owes a duty of reasonable care to any individual foreseeably put at risk by the physician’s failure to warn his or her patients. . . .
It might be tempting for political liberals, who would like to rely upon the United States Supreme Court to defend individual liberties and to sustain progressive legislation, to conclude that the sky has fallen. It started falling, of course, even before the tenure of William Rehnquist as Chief Justice. But with the appointment of John Roberts as Chief Justice and Samuel Alito as an Associate Justice, the transformation of the Court is accelerating. And the sky? Well, one can almost touch it. The modern Court can now be relied upon to strive to protect business interests against legislation designed to protect workers, consumers, and the environment; to halt the judicial expansion of personal liberty interests while expanding judicial protection of property interests; to interpret a “colorblind” Constitution by rolling back affirmative action and school-desegregation plans; to restrict access to courts by upping the ante on pleading requirements and statutes of limitation; and to weaken the boundaries between church and state. On these and many other issues, the Roberts Court’s advancement of the conservative political agenda is well underway. . . .