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

Re, Richard M.

doi:10.2139/ssrn.3143130

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

UCLA School of Law, Public Law Research Paper No. 18-14

24 Pages Posted: 22 Mar 2018 Last revised: 30 Apr 2018

See all articles by Richard M. Re

Richard M. Re

University of Virginia School of Law

Date Written: January 26, 2018

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

Suggested Citation: Suggested Citation

Re, Richard M., Brief of Professor Richard M. Re as Amicus Curiae in Support of Neither Party, Hughes v. United States (January 26, 2018). UCLA School of Law, Public Law Research Paper No. 18-14, Available at SSRN: https://ssrn.com/abstract=3143130 or http://dx.doi.org/10.2139/ssrn.3143130