election law, precedent, bush v. gore, jurisprudence
My comment looks at the debate in the 6th Circuit case Stewart v. Blackwell in light of the history of the use of "limiting language" by the Supreme Court. I catalog the Court's past uses of limiting language, and distinguish between the Court's several uses of limiting language. Against those who defend the limiting language of Bush v. Gore as simply an example of innocuous minimalism, I report my findings that "limiting" is always used by the Court to nullify a principle that decided a previous case. Additionally, the Court has never, prior to Bush, used limiting language to limit the principle in the majority opinion of case being decided. The Stewart majority would have been well advised to note this new use of limiting language, and to ask for further clarification by the Supreme Court.
Flanders, Chad, Bush v. Gore and the Uses of 'Limiting'. Yale Law Journal, Vol. 116, p. 1159, 2007; Saint Louis U. Legal Studies Research.