The Marks doctrine was established by the Supreme Court as an earnest attempt to divine binding precedent from fractured decisions that failed to gain support from a majority of the Justices. While well-intentioned, the doctrine has proved to be, at best, difficult, and more often nearly impossible to correctly apply with any degree of certainty. Recently, in Hughes v. United States, the Court had the opportunity to further flesh out the doctrine and provide struggling courts and practitioners guidance when working with the rule’s abstruse mandates. Instead, the Court declined this opportunity. This comment will discuss the development of the doctrine, the challenges that courts have had when working with it, and the doctrine’s ultimate illogicality and unworkability. The Court’s failure in Hughes to further develop the doctrine signifies the beginning of the end. The Marks doctrine more properly belongs in a museum than in contemporary American jurisprudence, and this comment will conclude that the doctrine, along with non-majority opinions in general, should be rendered obsolete and replaced by one, and only one, majority opinion that provides the binding precedent for future courts to follow.
Exodus from the Land of Confusion: Why Hughes v. United States Supports the Overruling of the Unworkable Marks Doctrine and a Change in Court Practice,
St. Louis U. L.J.
Available at: https://scholarship.law.slu.edu/lj/vol65/iss1/10