Sunday, November 26, 2006

What is the precedential value of Bush v. Gore?

Chad Flanders has an interesting article in the Yale Law Journal's Pocket Part, "Please Don’t Cite This Case! The Precedential Value of Bush v. Gore." A brief excerpt:
Bush v. Gore is not, as some critics have alleged, a merely incoherent opinion; it is contradictory, both setting down a rule and denying that any rule had been set down.

The Court has so far behaved as if Bush v. Gore does not exist, not yet having cited it (pro or con) in any case. If Stewart v. Blackwell is not the case that ultimately forces the Supreme Court to show its hand, some other case will have to be.

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