INTRODUCTION :: Ten years ago this week, Dunwody Lecturer Cass Sunstein stood at this podium and offered some thoughts about the then-recent impeachment of President Clinton. Professor Sunstein titled his remarks Lessons from a Debacle: From Impeachment to Reform. Today I shall share with you some thoughts about a different debacle, one that arose not from the effort to oust Bill Clinton, but from the effort to choose his successor.
The failed attempt to remove Clinton in the late 1990s and the Bush-Gore Florida extravaganza of 2000 share some obvious similarities. Both dramas gripped the nation and the world, dominating the headlines and the airwaves day after day. Both episodes featured intense, high-stakes political partisanship, not just behind the scenes, but also in the spotlight. Both chapters in America’s unfolding constitutional saga forced participants to ask themselves whether, where, and how a coherent line could be drawn separating law from raw politics. And both times, Al Gore was the odd man out. (Remember, had Bill Clinton’s opponents actually succeeded in forcing him from office in early 1999, his loyal Veep would have become President long before “butterfly ballots” and “dimpled chads” entered the national lexicon.)
In the years since the Florida recount, constitutional scholars from across the spectrum have weighed in with detailed legal analyses of many of the relevant statutory and constitutional issues. Two particularly fine collections of legal essays were published as books by the University of Chicago Press and by Yale University Press. (Interestingly enough, the ubiquitous Professor Sunstein published three essays in these books; yet another essay was authored by Professor Frank Michelman, who stood at this podium as the Dunwody Lecturer exactly one decade before Professor Sunstein and prophetically addressed the topic of voting rights.)
At this late date-now that all the shouting here in Florida has subsided and so many scholarly assessments are already in print-some of you may quite reasonably be wondering whether there are any new things left to say about the Bush-Gore episode. In what follows, I hope to put the various pieces of the Bush-Gore puzzle together in a distinctive way and to highlight a few points that are not yet widely understood.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital