Steinman on Non-Majority Opinions and Biconditional Rules

Adam Steinman (University of Alabama – School of Law) has posted Non-Majority Opinions and Biconditional Rules (Yale Law Journal Forum, Vol. 128 (Forthcoming)) on SSRN.  Here is the abstract: 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 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…

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