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Serious question for DU lawyers (Original Post) malaise Jul 2021 OP
Not a lawyer, but I do multigraincracker Jul 2021 #1
WOW!..Serious question..and answers all over the place..I have read asiliveandbreathe Jul 2021 #2
Thanks for these links malaise Jul 2021 #4
They did (sorta)... yet it has been cited in hundreds of lower courts cases FBaggins Jul 2021 #3
Thanks malaise Jul 2021 #5
among the many idiocies of that decision is that that's not the way precedence works unblock Jul 2021 #6
Thanks malaise Jul 2021 #7
Bush v. Gore is not good authority LetMyPeopleVote Jul 2021 #8
I want them disbarred malaise Jul 2021 #9

asiliveandbreathe

(8,203 posts)
2. WOW!..Serious question..and answers all over the place..I have read
Mon Jul 12, 2021, 04:37 PM
Jul 2021

the whole court proceedings from this morning.."Kraken" that is..from 3 different thread readings..and indeed, Bush v Gore was cited..wondering the same thing..my research thus far..re" precedent..

here is just 1 of the threadreaders'' UPDATED>>sorry..

https://threadreaderapp.com/thread/1414563804218806282.html


Thread reader access in this DU post.. for Mike Dunford and Adam Klasfeld..Klasfeld was epic funny and most clarifying..as the trial was ongoing..

https://democraticunderground.com/100215615602

https://www.quora.com/By-declaring-that-Bush-v-Gore-cant-be-used-as-precedent-did-the-SCOTUS-majority-effectively-admit-it-was-a-purely-partisan-decision

and then the "limited language" take from Yale..

https://www.yalelawjournal.org/pdf/524_4vxf43ib.pdf

I think I will become a lawyer..oh wait..too old..just sit back and enjoy the show...happy reading

FBaggins

(26,721 posts)
3. They did (sorta)... yet it has been cited in hundreds of lower courts cases
Mon Jul 12, 2021, 04:40 PM
Jul 2021
Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities


Some look at the first clause and interpret it as "we're not setting precedent for any other cases". Others read the second clause and say that the sentence means "it depends on the circumstances".

I read it as "there isn't enough time to write a thorough analysis... but we know what the results should be"

Different panels of judges on the same circuit court of appeals have read it in opposite directions years apart.

unblock

(52,126 posts)
6. among the many idiocies of that decision is that that's not the way precedence works
Mon Jul 12, 2021, 04:58 PM
Jul 2021

it's effectively impossible to declare, within the decision itself, a decision to be a non-precedent. really, all this does, at best, is establish a precedent for making one-off decisions by declaring them to be non-precedents.

moreover, any time the supreme court makes a decision, the default assumption for lower courts and really, all americans, is to assume any subsequent supreme court would likely find similarly in similar situations. what's lacking is a clear-cut rule for when the decision applies, so there's more guesswork involved in determining if some new case is similar enough to the original "non-precedent"-producing case.


frankly, scalia's assertion that the case was not to be taken as establishing a precedent was really just his confession that the 5-4 vote came first for political reasons, not legal ones, and that he then wrote a garbage opinion as a fig leaf to thinly disguise the fact that 5 republican justices imposed their personal political preference over the will of the people simply because they could get away with it.

*that* is why he didn't want it to be taken as precedent.


ianal

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