Episode 164: Post-Marks-Regime World

What is the legal precedent following a decision of the Supreme Court that lacks a majority opinion? For a few decades, the meta-rule has been that such as case stands for the position of those justices "who concurred in the judgments on the narrowest grounds." Or has it? And could it? Richard Re joins us to discuss the problems of the Marks rule, the meaning of precedent, and ultimately the nature of our law. This problem will be confronted in the Supreme Court in the coming weeks.

This show’s links:

Richard Re’s faculty profile and academic writing

Re's Judicata

Richard Re, Beyond the Marks Rule

Adam Steinman, Non-Majority Opinions and Biconditional Rules

Marks v. United States

SCOTUSblog page for Hughes v. United States

Richard's amicus brief in Hughes

Aro Mfg. Co. v. Convertible Top Replacement Co.: the 1961 decision and the 1964 decision

Justice Lewis Powell's papers on Marks from the The Lewis Powell Supreme Court Case Files at Washington and Lee University School of Law

Special Guest: Richard Re.