Monday, November 7, 2011

non·fea·sance /nänˈfēzəns/


I’ve had more than one professor quote Oliver Wendell Holmes, Jr. when he said, “This is a court of law, young man, not a court of justice.” They usually pull this quote out when someone is answering a question based on what they think a party should do and not necessarily what the party must do, legally. The point is that the law is sometimes unfair and not a perfect means of effectuating justice.

I get it. I recognize that if judges began deciding cases based on what their gut told them was morally right our legal system would crumble. But that doesn’t mean I’m happy with the fact that sometimes courts fall short of delivering justice. Do I understand why? Yes. Do I realize it’s something I’ll have to put up with throughout my career? Unfortunately, I do.

But I want to leave all that logic behind for just a moment. Instead, I just want to be sad. I’m being taught all about how morally questionable actions, if legally protected, create no liability in the amoral actor. It makes sense in theory. But today I felt bombarded by real-life instances of moral ambiguity that have me reeling.

Our Torts reading for today included a case against the Church. A mother and her son were sexually abused by a ward member (this case might sound familiar to some of you Utahns; it’s pretty recent) and they sued the Church, claiming the Church had knowledge of the abuser’s propensity toward sex crimes and, therefore, was negligent in not warning the plaintiffs of the harm he posed. You don’t need to know the law to know or predict the outcome of this case. It was dismissed, because the Church owed no such duty to the victims. I don’t think the Church acted questionably here, so I don’t want you to think that I do.  I would like to believe that no one had information that they legally could have shared but instead withheld. But isn’t it sad that even if they did, they wouldn’t be culpable?

The whole idea in tort law that you have no duty to act to prevent harm makes perfect sense, legally. But something about it makes my soul sad.

To further that sadness, let’s talk a bit about Penn State. The Wall Street Journal Law Blog has a good article about what’s going on. It’s tragic that a historically significant coach like Jerry Sandusky could turn out to be so terrible. But that tragedy isn’t having the biggest effect on me here. Yes, I appreciate what Jerry Sandusky did to create “Linebacker U,” but I have no personal feelings about Sandusky. If he’s guilty, I hope he receives the sentence he deserves. What’s breaking my heart is knowing that an institution in which I have invested so much faith and love and loyalty is now appearing unscrupulous, to put it mildly. In my very rudimentary opinion, the legal issue coming out of State College is not so much Curley and Schultz’s failure to report what they knew as it is their perjured statements. But what’s bothering me more is Joe Paterno’s role. I firmly believe that JoePa acted appropriately when he took the information from that graduate assistant and told Curley. I am inclined to believe that maybe he really didn’t know the gravity of the situation. I’m certain that JoePa has no legal guilt here.

But still...

There’s this image in my head of a picture of myself when I was less than a year old. I’m sitting on my dad’s shoulders, holding a Penn State football, wearing a Penn State shirt (that I’m sure referenced the ’86 National Championship). From that moment until now, Joe Paterno has been my hero. I have deferred to him on all decisions Penn State. Is he too old to still be coaching? If Joe thinks no, I think no. Should McGloin start over Bolden? If Joe thinks so, I think so, too.

So I guess it makes sense that it literally breaks my heart to think that maybe, in this situation, Joe Paterno didn’t do everything he could have. It makes me ill to see that man slip, even a little, from that pedestal. It shakes my very view of the world to think of my hero as anything less than heroic.

Needless to say, I’m struggling. I’m sad. And that’s all I know about where I stand right now.

2 comments:

Adiel Cloud said...

Here are my thoughts:
You can look up to someone your whole life and then one day they make a bad decision. This doesn't change anything they did or how you felt before then. I think you can still look up to who this man was before now. Just my thoughts...

Jen said...

Perfect mirror of my feelings today. Thanks for writing it out far better than I ever could.