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

handle is hein.journals/yljfor128 and id is 1 raw text is: 

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.


    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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