Channing J. Curtis (University of Mississippi, School of Law) has posted Clarifying Plurality Precedent: Historical Applications and Theories of Holdings on SSRN. Here is the abstract:
Plurality decisions complicate the law of judicial precedent, leaving practitioners, courts, and academics alike at a loss for sound methodology to determine a binding rule of law. Scholars have thus commented that the Marks rule should be abandoned, while others seek to clarify its application. But in all this discussion and debate over plurality precedent and the Marks rule, a few points are overlooked. First, scholars readily dismiss affirmances by an evenly divided court in any analysis of plurality precedent. However, the reasons why affirmances by an evenly divided court are universally thought to be of no precedential authority, may lend a hand in deciding whether the Marks rule is wrong. Second, scholars often briefly mention the historical treatment of plurality decisions prior to Marks, but there has been virtually no analysis of the opinions dealing with the question of plurality opinions prior to the Supreme Court’s decision in Marks. State, federal and scholarly treatment of plurality decisions may lend a hand in assessing whether the Marks rule is grounded in sound legal theory. Finally, scholars often fail to ground any discussion of the Marks rule in the much deeper theoretical framework of holdings. This Article fills these gaps in the literature on plurality precedent.
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