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 desirable compromises. Click the link to read more…..
Categories: Supreme Court
