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 (https://www.law.ucla.edu/faculty/faculty-profiles/richard-m-re/) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=974617)
Re's Judicata (https://richardresjudicata.wordpress.com)
Richard Re, Beyond the Marks Rule (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090620)
Adam Steinman, Non-Majority Opinions and Biconditional Rules (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3123807)
Marks v. United States (https://scholar.google.com/scholar_case?case=12064198172779556411)
SCOTUSblog page for Hughes v. United States (http://www.scotusblog.com/case-files/cases/hughes-v-united-states/)
Richard's amicus brief in Hughes (https://www.supremecourt.gov/DocketPDF/17/17-155/33360/20180126134313770_17-155%20Re%20Amicus%20Brief.pdf)
Aro Mfg. Co. v. Convertible Top Replacement Co.: the 1961 decision (https://scholar.google.com/scholar_case?case=14679629603309035961) and the 1964 decision (https://scholar.google.com/scholar_case?case=2231855974886805443)
Justice Lewis Powell's papers on Marks (http://law2.wlu.edu/deptimages/powell%20archives/75-708_Marks_US.pdf) from the The Lewis Powell Supreme Court Case Files (http://law2.wlu.edu/powellarchives/page.asp?pageid=1279) at Washington and Lee University School of Law
Special Guest: Richard Re.