« Good timing for a message-sending tax fraud sentence!?! | Main | President Obama nominates two more district judges to serve as circuit judges »

April 2, 2009

Interesting new paper on Baze and lethal injection litigation

A helpful reader pointed me to this new paper appearing on SSRN titled "Bazed and Confused: Lethal Injection, the Eighth Amendment, and Plurality Opinions."  Here is the abstract:

For over six months, from October 2007 to April 2008, there was a de facto moratorium on all executions while state and lower federal courts waited for the Supreme Court to assess the propriety of lethal injection protocols under the Eighth Amendment.  Unfortunately, the Supreme Court proved incapable of achieving even minimal consensus as to the interplay between the Eighth Amendment and lethal injection procedures.  Chief Justice Roberts's plurality opinion in Baze v. Rees, which purports to provide a framework for use by lower courts evaluating the constitutional propriety of local lethal injection protocols, garnered the votes of only three justices. Far from resolving the lethal injection dispute, Baze leaves the individual states and lower courts to quarrel over the weight and precedential value to be accorded to the case's seven separate opinions. This Article addresses the fact the Court's jurisprudence regarding plurality opinions -- the Marks rule -- is frustratingly indeterminate in its application to any case, and antithetical to the Eighth and Fourtheenth Amendments in the context of capital cases.

This is the first article to critique the unchallenged assumption that plurality opinions, such as Baze, generate reliably binding precedent in the context of capital appeals.  Building on an established literature regarding the heightened importance of procedural regularity in the context of capital cases, this Article argues that the Court's current framework for discerning constitutional rules from plurality opinions-the Marks rule-has proven incapable of reliable and regular application, and therefore, must be revisited by the Court.  After demonstrating the need for a clarifying standard regarding the application of plurality opinions in the capital context, this Article reflects on what a reformed approach to plurality precedent should look like.  To this end, the second major premise of the Article is that although a variety of standards may produce the sort of regularity that is currently lacking in the context of plurality opinions, not every formula for discerning a holding from a plurality decision is consistent with the consensus and legitimacy concerns that lie at the heart of modern Eighth Amendment jurisprudence.  Specifically, by directing attention to the oft-ignored, but longstanding, circuit split regarding the scope and application of plurality opinions, this Article calls for a re-examination of doctrines that would allow non-consensus based rulings to define the contours of Eighth Amendment law.  In short, this Article addresses the intersection of plurality opinions, the death penalty, and the Eighth Amendment, and prescribes a two-tier inquiry for resolving the ambiguity that surrounds the Marks rule in this context.

April 2, 2009 at 10:07 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Interesting new paper on Baze and lethal injection litigation:

» Blog Scan from Crime and Consequences Blog
Judicial Nominees for the Second and Fourth Circuits: Ashby Jones reports on Wall Street Journal Blog that President Obama has announced two nominations for vacancies on Second and Fourth Circuit Courts. This morning, President Obama announced he would... [Read More]

Tracked on Apr 2, 2009 5:27:27 PM

» Blog Scan from Crime and Consequences Blog
Judicial Nominees for the Second and Fourth Circuits: Ashby Jones reports on Wall Street Journal Blog that President Obama has announced two nominations for vacancies on Second and Fourth Circuit Courts. This morning, President Obama announced he would... [Read More]

Tracked on Apr 2, 2009 5:32:26 PM


The abstract is tedious. I can only imagine how brutal that paper must be. In the context of Baze, CJ Roberts' opinion is clearly the precedent to be relied on.

Posted by: federalist | Apr 2, 2009 10:22:34 AM


How is that so clear? That seems to fly completely in the face of the Marks rule. Whether you agree with that rule or not, it has been the rule for a very long time that it takes 5 votes to create binding precedent. Roberts' opinion seems to go much further than some of the concurring opinions. Under Marks, you go with the most narrow opinion that creates the 5th vote.

While I ultimately agree with Roberts' opinion, I don't see how anyone can argue that the his opinion alone is binding precedent.

Posted by: da_2_b | Apr 2, 2009 11:49:16 AM

I don't agree with Roberts' opinion; I agree with Scalia and Thomas' view.

Certainly, you have five votes for, at a minimum, the Roberts view, in the sense that there are five votes to go at least that far (and Scalia and Thomas would go further). Marks doesn't require it to be pared back. Been a while since I have read it, so maybe my "clear" was a bit far. I think my reasoning is sound here.

Posted by: federalist | Apr 2, 2009 12:16:30 PM

The number of seats on the Supreme Court should be changed to an even number. That would make it more conservative, and avoid the distress of 5-4 decisions.

The number of seats should be increased into the hundreds, since it acts like a legislature. It needs the wisdom of a bigger crowd.

There should be a term limit of half a generation. The lifetime appointment was in the Constitution 100 years before the clinical description of Alzheimer dementia. Dementocracy was one of three big mistakes made in the Constitution.

Posted by: Supremacy Claus | Apr 2, 2009 4:56:43 PM

Federalist, I challenge you to show me the path toward "clearly" recognizing Roberts' opinion as a narrowest ground. The Marks rule, as announced, looks for commonality among the reasoning of the justices. I suggest you give the article a read, then you will see that your view of Marks as intuitive is out of step with the reality of its application in lower courts (and even the court itself). The author notes that the "there is 5 votes" approach that you assume is the Marks rule, does not necessarily comport with our system of precedent, Marks or not.

Posted by: Marksist | May 1, 2009 9:49:39 PM

See the Cooey decision from the ND. Ohio. The federal district court did not think that the Marks rule was so obvious in the Baze context.

Posted by: JM | May 1, 2009 9:54:03 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB