Brief of Professor Richard M. Re as Amicus Curiae in Support of Neither Party, Hughes v. United States

Abstract

This brief argues for abandoning the "Marks rule," or the principle that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” Instead, a precedent of the Supreme Court should form only when most justices expressly agree on a rule of decision. The arguments builds on the evidence and argument set out in Richard M. Re, Beyond the Marks Rule, Harv. L. Rev (forthcoming 2018) (available on SSRN).

Keywords: Marks rule, precedent, stare decisis