Bush v. Gore - Has Legs, Will Travel

When Bush v. Gore was decided in 2000 it seemed that it was a decision about one case and one case only. It was to have no precedential value. Things have changed. Check out the December 22nd analysis of Adam Liptak in Sidebar, a regular feature of the New York Times. Liptak says...

"The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct."

With the fullness of time and the apparently unending creativity of counsel, Bush v. Gore has taken on a life of its own. Now Bush v. Gore is being cited by both parties in the latest election law suit - Coleman v. Ritchie, the Minnesota case that may decide the Al Franken/Norm Coleman election. You can find the documents from that case posted at ElectionLaw@Moritz, here.

This is a fascinating turn of events considering the following statement by the majority of the Supremes when they decided Bush v. Gore -

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
Bush v. Gore, 531 U.S. 98, 109 (2000).

Two unrelated legal research questions arise from this -

1. What is a case, anyway? If the court issuing an opinion says that stare decisis does not attach how can we ever consider that case to be precedent? And yet, the courts and counsel clearly do despite the clear restriction by the Supreme Court.
2. Independent websites and blogs like ElectionLaw@Moritz are proliferating. They may become an essential means of following legally related stories. Since we are in the midst of an election cycle it is easy to set up a feed from a site like this and simply wait for the information to come in. If your server is large enough anything can be posted for examination. Motions, affidavits, memoranda are all there to be downloaded and considered. More grist for the researcher's mill. But, when the history of this election is being written, will the documents still be available? How long will OSU maintain its archive?