"From Bush v. Gore to NAMUDNO: A Response to Professor Amar"

Ellen Katz has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

In his Dunwoody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the Supreme Court's decision last June in Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO). Among its many surprises, NAMUDNO helps illuminate the Court's fundamental error nine years ago.

Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified and disastrously consequential. What NAMUDNO helps us see is that such mistrust, be it mistaken or warranted, need not be incompatible with a sound judicial response. NAMUDNO shows that the Court’s most profound error in Bush v. Gore was not the premise from which the Justices began, though flawed it may have been, but rather where they went from there.

Posted by Rick Hasen at October 5, 2009 08:19 AM