Legal Commentary

Rule of Law

By Michael Froomkin

Suppose that after Bush v. Gore, someone had proposed as a testable hypothesis that an administration that took office thanks to a court ruling of dubious fidelity to stated norms of the rule of law would govern in defiance of those norms.

What would we say today about that hypothesis?

It’s ?looking good??

(Bonus legal contortion.)

[Original draft 12/19/2007: In preparation for my blog redesign, I found draft blog posts that somehow never made it to publication. This is one of them.]

2010: As we’ve just passed the 10th anniversary of Bush v. Gore, it seems like a time to post this, although people are starting not to care, which is itself a bad sign. The Obama administration’s decision not to prosecute anyone important from the Bush administration will surely come back to haunt us as it amounts to de facto legitimation — or at least acceptance which will in time be treated as legitimation — of their tactics. So even if the Obama appointees are more inclined to follow the rule of law than were their predecessors, they’ve still set it back in the end. It’s odd to have an administration that is both so Caeserist (or is that Bonapartist?) as regards state power and yet so often so inept at using political power. Unless of course they are in fact getting just what they wanted.

Full post as published by Discourse.net on December 14, 2010 (boomark / email).