Much Ado about Pluralities: Pride and Precedent Amidst the Cacophony of Concurrences, and Re-Percolation after Rapanos

Abstract

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to explore this topic of concurrences, precedential complexities, and confusion. It addresses these issues by introducing the Marks doctrine's ability to assist jurists and others who are wrangling with precedents latten by pluralities. Part of the precedential system is the signaling function to lower courts, and that signal can be disrupted by plurality opinions, and it analyzes lower courts' reaction to the fractured nature of Rapanos. But plurality decisions may open the door to re-percolation in interpretations. Finally, this Article examines Marks and this situation in relation to judicial motives. The legal treatment of separate opinions may alter incentives to concur rather than join, thus creating the possibility that their nuance on the holding will have greater influence once a case must be applied in the lower courts. Rapanos provides an excellent case study of a fragmented decision in the era of many such decisions. The confusion that it has caused is serious and reflects the limitations of lower courts' ability to apply the Marks doctrine as well as the limitations of the doctrine itself. Thus, while the Marks doctrine creates self-interested incentives to write separately, its limitations act as a check on these incentives. Whether that check is enough to control the pride, prejudice or prudence that causes the Court to issue a fractured decision is questionable. As a result, some plurality decisions are much ado about nothing, but others are a source of ongoing confusion and uncertainty that seriously undermines our system of precedent.

Keywords: Plurality, Concurrence, Dissent, Precedent, Rapanos, Marks, Statutory Interpretation, Constitutional Interpretation, Environmental Law, Jurisprudence, Stare Decisis, Clean Water Act, Courts, Law and Economics

JEL Classification: B00, B40, H00, H10, H11, H19, K00, K11, K20