Viewing the "Draft guidelines for state court decision making in authorizing or withdrawing life-sustaining medical treatment" from the perspective of related areas of law and economics: a critique.

Introduction (1) In December 1990, the National Center for State Courts published its "Draft Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment (LSMT)." (2) The introduction to the draft guidelines states that the "media [portrays] LSMT cases as moral and ideological conflicts," whereas "trial judges must deal with more prosaic procedural and practical issues in handling these cases." (3) The draft guidelines, the introduction goes on to say," are meant primarily to be practical recommendations that will assist judges in resolving LSMT controversies. Thus they focus on administrative practices, court procedures, and the process of legal decision making, and not on the relevant substantive law." (4) The "right to live/right to die" debate raises important issues of substantive law. The Supreme Court in Cruzan v. Director, Missouri Department of Health (5) dealt with some of these issues but did not completely or even satisfactorily resolve all of them. For example, does the constitutional right to privacy include the right to decide to terminate one's own life? (6) Does the state have a sufficiently important interest in its citizens' lives to control this decision by requiring that life be maintained? (7) May the state require that lifesaving medical treatment be withdrawn? (8) Should the law of homicide punish a person who helps another terminate his life? (9) How much of society's resources can reasonably be used to maintain a person's life? (10) Can insurance companies be required to pay without limit to maintain human life? (11) How our society eventually answers these questions will determine the rules of the substantive law in this area of value conflict and high emotion. The draft guidelines, however, purport not to get involved in this debate. In short, they are intended to be procedural, not substantive. The distinction between "procedural law" and "substantive law" is commonplace, one which every first-year law student feels comfortable making. Substantive law, he learns, has to do with the rights and duties of men in their relationships with each other or with the state, whereas procedural law deals with the means of maintaining or redressing these rights when they have been violated or when their violation has been threatened. Procedural law "exists for the sake of something else--for the sake of 'substantive' law." (12) It serves the resolution of lawsuits under the substantive law. In federal and in most state courts there is one code of civil procedure to serve all areas of substantive civil law, e.g., contracts and torts. Except for criminal law, which presents unique problems, special rules of procedure for the various areas of substantive law are rarely considered necessary. And thus, when a prominent body such as the National Center for State Courts drafts special procedural guidelines just for a specific area of substantive law, attention is alerted. Why a special set of rules? Are the judicial problems of authorizing or withholding lifesaving medical treatment so different that a special set of procedural rules is necessary? Is perhaps the commonplace distinction between substantive and procedural law not as clear-cut as one may first think? Are the rules of procedure set forth in the draft guidelines taking on functions beyond that of simply serving the resolution of cases under the substantive law? Rules of procedure occasionally take on tasks other than simply serving the substantive law. In this imperfect world there are lots of legal cases and litigants with stories to tell. Courts do not have unlimited time and resources to get the bottom of every case and story in an effort to resolve each case justly under the norms of the substantive law. Thus, rules of procedures are sometimes used to assure the efficient administration of the courts and to enable courts to dispose of a large number of cases. …