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O'Connor's Supreme Court Precedents: Marty Lederman has a post at Balkinization discussing the "five high-profile constitutional areas" where O'Connor's precedents are vulnerable to being overruled by the current U.S. Supreme Court. The five areas include abortion, "race conscious assignments and affirmative action", campaign finance regulation, the establishment clause, and Congress's power to remedy discrimination under the Reformation Amendments. Lederman points out that in the areas of abortion, race conscious assignments, and campaign finance regulation, the Court has already taken "big bites" out of the rules established by O'Connor's opinions. The post also gives a helpful list of cases between 1995 and 2005, where O'Connor's vote was the decisive vote, or where she authored the opinion.

Mootness, and the Relevance of Munsingwear: Pattie Millet at SCOTUSblog has a post giving practioner's points on mootness. The post discusses the 58 year-old precedent of United States v. Munsingwear, Inc., 340 U.S. 36 (1950), that established, as paraphrased by Millet, "where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated." The most helpful aspects of the post are Millet's pointers on the caveats to the Munsingwear rule. These caveats include: (1) the party seeking Supreme Court review cannot be responsible for the mootness; and (2) because vacatur is a discretionary exercise, a motion for vacatur must persuade the Supreme Court "not only that equitable relief is appropriate, but also that the Supreme Court’s time and intervention are warranted."

Texas Executions:
Grits for Breakfast has a post on a Texas Court of Criminal Appeals decision released yesterday that approved Texas lethal injection procedures. The first few paragraphs of the post address the dissenting opinions of Judge Price and Judge Johnson, but the end of the post discusses the majority opinion by Judge Hervey. The majority of the court "characterized the lethal injection procedures analyzed in Baze as 'materially indistinguishable from Texas' lethal-injection protocol.'"

James Q. Wilson has been guest blogging at the Volokh Conspiracy on crime and punishment. His most recent post, as of this writing, with links to the earlier ones is here. Our good friend and advisor appears to be a bit surprised that the comments section of VC is pretty much a food fight.

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Thanks for the link to Grits. FWIW, part of the reason I focused on the dissents was that I found Judge Hervey's argument that the procedures were "materially indistinguishable" to be a factually false claim and thus an odd and disappointing conclusion. Here's the description of the differences in the two protocols.

Personally I don't think much of the LI debate. Once you've decided a human being is 100% disposable, I see little reason for concern with niceties. What concerns me more is the tendency of the Texas CCA to legislate from the bench on behalf of the prosecution, and claiming widely disparate fact situations are "materially indistinguishable" is the kind of finding that IMO loses them credibility.

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