Bush v. Gore as Precedent

Abstract

My essay treats the thorny question of the precedential value of Bush v. Gore from three angles. In the first part, I look at the history of the Supreme Court limiting its decisions to the facts of present case. The venture into history is designed to test the argument made by some that the language limiting the reach of Bush v. Gore is an innocuous example of narrowing the scope of the principle propounded in Bush, rather than an objectionable restriction of the ruling to only one unique set of circumstances ­ the circumstances of Bush v. Gore. The second part of my essay looks at the question of precedent from a more theoretical angle. What does it mean for an opinion to have precedential value, as opposed to being good only for a single case? Finally, in the third part, I examine in detail how the issue of Bush v. Gore as precedent has played out in two recent cases, one in the 9th circuit and one the 6th circuit.