Understanding Prophylactic Remedies Through the Looking Glass of Bush v. Gore
Tracy A. Thomas
University of Akron School of Law
William & Mary Bill of Rights Journal, Vol. 11
This is not just another article about Bush v. Gore. Rather, this article does something that no article to date has done: it analyzes the impact of the textual decision in Bush v. Gore on the law of remedies. For the first time, an article examines the actual text of the decision to reveal that it holds important precedent regarding remedies for constitutional and voting rights. The area of remedies law is often ignored in legal scholarship. Thus, this article hopes to contribute to the legal academy by addressing the important area of remedies for constitutional violations through a timely and interesting example of Bush v. Gore. The article applies the unified right theory of remedies I first developed in Congress' Section 5 Power and Remedial Rights, 34 U.C. DAVIS. 673 (2001) to the unprecedented use of a prophylactic remedy in Bush v. Gore.
In this article Understanding Prophylactic Remedies, I explain the relatively new legal concept of a prophylactic remedy and argue that it was inappropriately used in Bush v. Gore. Prophylactic remedies have become the miscreant of judicial relief as often the term "prophylactic" is used to describe illegitimate judicial action. However, I take issue with these critics, arguing instead that prophylactic remedies are legitimate exercises of the judicial power to remedy wrongs. The problem in Bush v. Gore, in my view, was the misuse of the powerful prophylactic remedy. The Supreme Court in its decisions on desegregation and prison reform has reserved this powerful remedy for extraordinary situations. In contrast, the Bush Court imposed the remedy in contravention of its prior case law to circumstances that did not warrant the broad remedy. Moreover, the Court misused its equity power to create a remedial façade that denied rather than provided relief. This unprecedented use of a prophylactic remedy thus creates important precedent for the future use of such powerful relief.
Number of Pages in PDF File: 64
Keywords: prophylactic remedy, remedies, constitutional law, Bush v. Gore
JEL Classification: K10, K19, K41
Date posted: December 5, 2002