In substance, I agree with Justice Blackmun's declaration that he could no longer tinker with the machinery of death, and therefore would vote to overturn every death sentence and declare the American death penalty unconstitutional. The emotional baggage that comes into court in the kinds of cases eligible for death-penalty treatment is precisely the kind of baggage that we're always supposed to leave outside the courtroom in the interest of justice. But that's just the substantive issue; until every death-penalty-eligible defendant gets high-powered, pro bono counsel from major law firms, with all of the support that implies (and that simply is not available through the public defender system); and until the vestiges of racism and bigotry are removed from the law enforcement and prosecutorial systems; and until electioneering is removed from the judicial and prosecutorial systems; and until we start treating jury service as the right and privilege that it is, with the concomittant respect from all players, I cannot see continuing with a death penalty system. And those are just the preliminary barriers that I see as the critical procedural barriers, before we even get to questions like "Can the State justify killing anyone, even John Wayne Gacy?"
In any event, though, the three opinions from Texas all essentially tell the US Court of Appeals for the Fifth Circuit, and the Texas Court of Criminal Appeals, that "When we said the procedure was unconstitutional, that did not give you license to evade our findings or directives." The courts in question should be happy that the inordinately polite Justice Stevens delivered the smackdown; it came off as more of a slap on the wrist than a flying supplex. A smackdown it was, though. And, frankly, one that is long overdue. I am afraid that Chief Justice Roberts' dissent results from some blindness to the historical context of death-penalty decisions in Texas; I found his assertions that the law wasn't "clear" quite unconvincing, particularly when reading all of his cited cases together. His argument essentially boils down to "the existence of exceptional cases, in which we found otherwise based upon particular factual records, is enough to demonstrate that the underlying rule was unclear" and that is at best fallacious. What it demonstrates at most is that it is possible to demonstrate an exception to the rule, and that those exceptions may well be distressingly frequent. On the other hand, one exception when there's a life at stake is distressingly frequent... as the D&X decision last week not just assumes, but states outright.
So, then, how does this affect publishing? Very simple: National Geographic. In this particular instance, there's a partially buried circuit conflict between the Second and Eleventh Circuit over whether Tasini really means anything. I take Tasini to mean that, consistent with the written transfer requirement of the Copyright Act, the reissue privilege must be construed narrowly. The Eleventh Circuit initially held so, but in a parallel case involving the same product, same defendant, and same basic issue, the Second Circuit held otherwise, and the Eleventh Circuit has somewhat backed away. Frankly, I can't see any justification in Tasini itself for backing away, particularly in light of footnote 6. That this may harm an exceptionally useful research product is beside the point; as much as I'd hate to see it go away, I'm afraid that the National Geographic Society is just going to have to live with the sloppy contract drafting and poor recordkeeping that was its own fault. And the less said about the purported "rights" of database aggregators, the better. (There is more than one reason that I recommended that my clients who were affected opt out of that pathetic settlement.)