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128 Yale L.J. F. 1 (2018-2019)

handle is hein.journals/yljfor128 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM MARCH 23, 2018 Nonmajority Opinions and Biconditional Rules Adam Steinman A B ST RACT. In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's hold- ing is the position taken by those Members who concurred in the judgments on the narrowest grounds. The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B). Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent- setting case. This Es- say identifies these concerns and proposes ways to apply Marks coherently to non-majority opin- ions that endorse biconditional rules. INTRODUCTION For forty years, this instruction from Marks v. United States has governed how to identify the holding of a Supreme Court decision that lacks a majority opin- ion: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judg- ments on the narrowest grounds.... '1 The Supreme Court has recognized, 1. Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell & Stevens, JJ.)).

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