Richard Re

Beyond the Marks Rule

PUBLISHER
Harvard Law Review
DATE
2019
 

Abstract

This Article explores a basic question of precedent formation: when a majority of the Supreme Court cannot agree on a rule of decision, can the Court nonetheless create a precedent? Under the Marks rule, the answer is yes: a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” But that approach shifts costly interpretive burdens to later courts, privileges outlier views among the justices, and discourages compromise. Instead, Court precedent should form only when a single rule of decision has the express support of at least five justices. That majority rule would promote decisional efficiency by placing the burden of precedent formation on the “cheapest precedent creators”—namely, the justices themselves at the time of decision. To support those conclusions, this Article presents the first systematic study of the Marks rule’s operation in appellate courts, including the Supreme Court, the federal circuit courts, and state appellate courts. Lower courts are applying Marks with rapidly increasing frequency, including to construe state court decisions. Yet most appellate citations to the Marks rule involve a relatively small number of fragmented cases. These findings allow courts and scholars to evaluate the rule’s practical operation, as well as the costs and benefits of abandoning it. The link between decisional efficiency and precedent formation also sheds light on a number of broader issues in the law of precedent, including: whether to adhere to the results of fragmented or unexplained rulings, when justices may legitimately compromise to form a majority, and how lower courts should discipline the justices’ creation of precedent. But to make progress on these issues, we must first move beyond the Marks rule.

Citation

Richard M. Re, Beyond the Marks Rule, 132 Harvard Law Review 1942-2008 (2019).
 

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