The Yale Law Journal

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VOLUME
128
23 Mar 2018

Nonmajority Opinions and Biconditional Rules

Adam Steinman

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 holding 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 bicondition…

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