Extraordinary Measures: Protesting Rule of Law Violations after Bush V. Gore

33 Pages Posted: 16 Nov 2002

See all articles by Kathryn R. Abrams

Kathryn R. Abrams

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Abstract

More than any case in recent history, the Court's decision in Bush v. Gore was intitally challenged as a violation of Rule of Law norms. Yet much of the scholarship that has subsequently analyzed the opinion has served more to normalize it than to underscore its departures. Moreover, almost none of this work has encouraged scholars to move beyond the conventions of legal commentary to protest its lawlessness. This article seeks to understand this disjuncture, and to explore its sources, both in scholarly understandings of the Rule of Law and in related, but distinct conceptions of the legal academic role. Drawing on a common thread of these arguments - one that describes rule- or law-making as a form of social practice - it argues that this tendency in recent scholarly work is misconceived. The article argues that the most compelling "social practice" versions of the Rule of Law suggest that law professors should move beyond their traditional boundaries of the academic role to resist a breach of this magnitude, and it identifies some of the means by which legal academics might usefully have responded to the violation implicit in the Court's ruling.

Suggested Citation

Abrams, Kathryn R., Extraordinary Measures: Protesting Rule of Law Violations after Bush V. Gore. Available at SSRN: https://ssrn.com/abstract=350800 or http://dx.doi.org/10.2139/ssrn.350800

Kathryn R. Abrams (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
333 North Addition
Berkeley, CA 94720-7200
United States
510-643-6355 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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