You said... "Stare decisis is the way judges seek the safety of the herd. We need to demand they exhibit more courage, and return to fundamental principles, resorting to stare decisis only when the positions lie on the fuzzy boundary of the region of legitimacy."
BINGO
Combine this doctrine with the precedent established over the last ten years or so...namely to decide life and death matters for terminal and disabled persons within the protocols and due process of a civil...rather than a criminal court...where the burden of proof is much higher...and what have you got?
A legal SNAFU...a Catch 22...a glitch...whatever you want to call it.
This is the point I keep trying to make..albeit unsuccessfully on these threads. This is what the legal system cannot fess up to at this point.
I'm willing to bet that there have been other somewhat similar cases to Terri already...but they have not received the media attention this one has.
One reason why Terri particularly stands out IMO is that, in this particular case....from the evidence I have read...there appears to also have been a venue established for illegal profit...and perhaps murder...the opportunity for the perfect...legally sanctioned crime. And of course Terris family and friends are fighting hard because of that.
Its a bit chilling if you think of it that way.
I've seen enough prisoners make
pro se filings and have them accepted by judges, despite falling far short of the basic requirements of the federal rules, that what happened here - Judge Whittemore refusing to retain jurisdiction over and move forward with a post-tube reinsertion
de novo trial mandated by Congress - will confound me to the day I myself die, particulary because he knew exactly what rule of law would apply to support permanent injunctive relief, if the Schindlers won at trial
de novo.
Perhaps that is why Birch went with the phony unconstitutional exercise of power angle this time.
Criminals who have been imprisoned routinely get a better deal in federal courts than Terri's parents did.
It's another sad subplot in this epic tragedy.