Yesterday the Supreme Court heard argument in Baze v. Rees, otherwise known as the “lethal injection case.” Contrary to popular perception—and the wishes of certain activist groups—Baze considers neither the constitutionality of lethal injection as a method of execution nor the validity of the death penalty itself. Instead, the issue is whether the particular three-chemical formula used by most states that employ lethal injection causes undue pain and suffering such that the method violates the Eighth Amendment’s proscription of “cruel and unusual punishment.” The Court’s decision—likely to be 5-4 with Justice Kennedy the swing vote as always—may turn on what weight the justices place on the availability of other “ drug cocktails” that purportedly accomplish the same result with less chance for “undue pain and suffering.” But that critical point raises two further (non-legal) questions: 1) Whether the case is about little more than delaying executions that will take place regardless of this particular ruling; and 2) Why haven’t all the relevant states simply adopted the “better” chemical protocols and rendered this case moot? Ultimately, this high profile case is a waste of judicial resources.
Featuring Holly Bell, Associate Professor (Business), University of Alaska Anchorage; and Hester Peirce, Senior Research Fellow, Mercatus Center; moderated by Louise C. Bennetts, Associate Director, Financial Regulation Studies, Cato Institute.
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In this issue of Regulation, Jonathan H. Adler and Nathaniel Stewart make the case for property-based fishery management, utilizing territorial or catch-share allocation among fishery participants. Also in this issue, Michael L. Wachter explores the relationship between the much-maligned National Labor Relations Act and the decline in union membership.
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