Brief of Professor Richard M. Re as Amicus Curiae in Support of Neither Party, Hughes v. United States
24 Pages Posted: 22 Mar 2018 Last revised: 30 Apr 2018
Date Written: January 26, 2018
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
Suggested Citation: Suggested Citation