I feel odd posting about the Schiavo case, because I usually try to weigh in on such hot potatoes only where my convictions are clear, or where I have something useful to add. I prefer to offend people with my controversial views only when I actually hold them.

I notice that in the circle of blogs I read daily, this is not uncommon-- Pejman Yousefzadeh, coblogger Raffi, and Mike Rappaport have all expressed some form of apology as they broke their respective silences.

But since a reader wrote in to ask for my further thoughts (now that the case is in the federal courts, or at least knocking at the federal gates) and I will provide a few.

1: The following questions seem to me to be difficult ones-- Whether a person is dead who is in a "permanent vegetative state"; Whether persons ought to be able to consent in advance to be killed; Whether declining to provide certain nutrients to an incapacitated person constitutes killing of the relevant kind; Who ought to answer such questions, and whose determinations of them ought to be final.

It is precisely because these questions are hard that we ought to resolve them by 1: setting up relevant laws to govern the interaction, and then 2: allowing individual people who think that the laws are not being followed to go before judges who are authorized to hear the claims, to present the relevant evidence and make arguments to the judges, and then achieve binding decisions in them. [I will bracket a fascinating side question; at some point, I believe that the Florida legislature attempted to pass a law overruling the Florida Supreme Court in this matter of state law, which the Florida Supreme Court struck down as violating separation of powers. I'm not positive this recollection is correct, nor whether the decision was.]

This means that the relevant-- to me-- questions in this debate are not "Is euthenasia moral or immoral?" or "Should the law generally give the power of attorney to blood relatives or to spouses?" The relevant question is 1, what Florida law actually did, 2, whether that law is consonant with the Florida and United States Constitutions, as well as all federal law and 3, whether the courts in charge of finding facts in this case did so as accurately as they are required to (and if not, who reviews those decisions and with what deference). I know it is terminally unsexy to care about such droll stuff as procedure when life or death is alleged to be at stake, and when charges of murder and grandstanding could instead be tossed about, but there you have it.

This means that arguments like Angus Dwyer's are admissible but arguments of the form "we should err on the side of life" (I decline to cite this, but examples are numerous) are not. We do not sit as a trial court, appellate court or supreme court in individual cases or controversies-- we set down laws (or get others to do so) precisely because we want to have orderly ways to resolve these controversies, rather than call the United States Congress together for a midnight caucus every time somebody might die an unjust death.

Now, if people wish to use the salience of this controversy to spark a debate about what the proper laws and rules ought to be in cases like this, fine. [My own tentative view (from which I am willing to be dislodged) resembles Amber's and Larry Ribstein's: We ought to allow people to decide whether they would like to be considered dead when in a PVS, paying attention first to unambiguous statements of desire, second to any person affirmatively delegated to make this decision ex ante, third to any person delegated to make this decision by a state default rule (spouses before relatives).]

All of which is to say what? So far I most of the relevant institutional actors seem (to me) to have acted in good faith and done a competent job. Schiavo has had something like 20 judges, several hundred legislators, and some number of executive branch officials consider her case, but she is perfectly entitled to all of that process if she can get it. I am most unsure about 1, the constitutionality of the federal statute that passed Monday, 2, the Florida Sup. Ct. decision that Terry's Law violated separation of powers concerns, and 3, the relevant findings of fact by the trial judge. But each of these actions are in turn systemically reviewable (number 2 least so) and I have no reason to think the relevant review has been or will be inadequate. So so far things seem to be proceeding properly to me, and people unsatisfied with the procedure should either elect new relevant legislators and executives (And judges?) or press them to pass different laws, if they think the system ought to proceed in a different way.

I have not been online in class all day today. This is not because I have changed my position but rather because the Technology Gods appear to have taken revenge on me by destroying my laptop's power cord.

A note on the great wireless battle occurring below. First, I just wanted to connect this discussion with a debate I had with Garrett Moritz way back in 2002 about laptops in class. It's not quite the same argument, but if you don't have laptops, wireless access somehow becomes less important.

As for combined questions of laptops and wireless, my basic sense is something like this: laptops improve my classroom experience, while wireless access is almost completely disastrous. Nonetheless, for the benefit of the virtuous, like Will, I'd support keeping it around. Just because I have pitiful self control doesn't mean others should suffer, and I don't think it's part of a law school's pedagogical mission to cater to my weaknesses.

Angus Dwyer and Pejman Yousefzadeh chime in on whether law schools should put internet in their classrooms, and Stuart Buck has updated his original post. (Mine was here).

Mr. Buck is skeptical, though, about the number of students who actually engage in fact-checking or in-class research. (He doesn't comment on the prevalence of on-topic messaging and emailing which I can say is quite prevalent here (no idea about elsewhere)). My own evidence is very anecdotal, which is part of why my attitude here is so personal. I engage in in-class research and fact-checking a whole lot, and I think law schools should continue to subsidize my behavior and the behavior of people like me. As to flashy websites being distracting, I'm unconvinced; they're only as distracting as you let them be, if there's no sound. Next the professors will be trying to close the windows to keep us from staring out at them, or covering up the portrait of Professoer Bickel in room 127 (which I find far more distracting than some guy playing Madden on his computer in front of me).

Anyway, I still think the strongest case for in-class wireless access is that it allows students to talk amongst themselves without whispering or passing notes, which allows them to make class discussion more productive and pleasant for both themselves and everybody else in the class. If I were a professor, I think it would vaguely annoy me not to know what my students were saying about me, but such is life.

UPDATE: A reader writes in with an example from a class he had with a certain professor at Indiana University:

As a 1L in his Criminal Law classroom, I enjoyed being one of the only students actively using wireless internet. Exactly as you suggest, I regularly viewed course materials, checked case materials (since, as you've likely discovered, some casebooks sometimes edit significant portions of opinions), and other productive activity. Many other students with laptops found ample distraction with minesweeper, hearts, and pinball.

One unusual event might suggest a professor's enthusiasm for internet access: In the days leading up to our exam, [he] asked the class to apply recent lessons to a new set of facts. In this case (as was normal), he used a case that had recently been decided in state court. It was difficult, and many students jousted with [him], each ultimately unable to explain how the outcome of the new case could be reconciled with the law we had spent the last several weeks learning.

Nervous that we were running out of time to discuss the thing that my neurotic 1L brain was most interested in (exam format--I know, it took amost another year before I got my priorities in order), I simply conducted a Westlaw search for the state court opinion and read it. I then raised my hand, explained the court's reasoning, and moved us on to exam questions.

Unfortunately, some of my classmates, also neurotic 1Ls, were flabbergasted that I had stated the answer so confidently. I learned later that several students left the room shellshocked, and one girl (who later became a good friend) was reduced to tears by her perceived inadequacy. (Note that I did not intend to cause this stress, but was ignorant of it.)

Two years later a few law students were having dinner with [him], and another student (the girl that cried) prodded me to tell the story. When I explained to [him] what I had done, he said "Oh I know. It was obvious from your feverish typing and careful reading that you were looking up the case. But we were getting near the end of class, and I needed someone to get us to the right analysis." [He] was as surprised as I to learn that the ploy had been the source of so much consternation.

We were, of course, flabbergasted to learn that 1Ls are not the sharpest people ever to walk the halls of the university.

Maybe I should add a little bit. I am far from certain that any students were really blown away by the episode [he] describes. First-year students, like potential whiplash victims, sometimes enjoy enhanced recollections of their trauma. These days, I think all students are aware of the likelihood that the "gunner" is simply armed with a laptop. But it's still unusual for a student to be able to do what [he] did, mainly because it is rare to find an opinion so well reasoned and easy to read that it's much help in the back-and-forth of the classroom. Anyway, if I don't want that truncating of discussion to happen, I usually hold off identifying my "hypothetical" as an actual case, and don't use real names, etc., giving a citation only after the discussion is over. Sometimes, though, it is instructive to let a student fall into finding the actual opinion, perhaps poorly reasoned, and let her try to defend the court's analysis as she gradually realizes that it is flawed. This can be, as Mastercard would have it, a priceless experience in lawyering.