April 03, 2007

Lowenstein on Bush v. Gore

Dan Lowenstein has posted The Meaning of Bush v. Gore on SSRN (forthcoming Ohio State Law Journal). Here is the abstract:

    The first section of this paper comments on a paper by Edward N. Foley, in which Professor Foley proposes a taxonomy for analyzing and evaluating actual and potential challenges to electoral practices under Bush v. Gore. The second section, which is the core of the paper, proposes an interpretation of Bush v. Gore based on a close reading treating the per curiam opinion as an integrated explanation of a result rather than taking particular statements out of context. The opinion is shown to be coherent. It is not "limited to its facts" and it does not attempt to negate any precedential effect, as many scholars have claimed. Two factors are crucial to the holding: (1) There was a disparate treatment of identical items of evidence in a judicial proceeding, and (2) the evidence treated inconsistently bore on the fundamental right to vote. The holding of the case is applicable only when those factors are present. However, the third and final section of the paper proposes a taxonomy, different from Foley's, for determining Bush v. Gore's possible influence in cases that are analogous but not within the holding.

Posted by Rick Hasen at April 3, 2007 11:05 AM