What is the definition of &quot;narrowest grounds&quot; with respect to a US Supreme Court plurality? I am of the understanding that in Marks v. United States, 430 U.S. 188 (1977), the Supreme Court has the following procedure in place: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. What does the &quot;narrowest grounds&quot; mean in this case? Who is responsible for making this decision? What if there is disagreement among the Justices as to which interpretation is, in fact, the &quot;narrowest&quot; interpretation?
When Marks is relevant The Marks rule is direction from the Supreme Court to lower court judges as to how to deduce the controlling position when the Court itself can't come to a majority position. When a majority of justices agree in the outcome of a case, but not on the law that gets them there, the Marks rule comes into play to determine what reasoning should be followed by lower courts. An example I'll explain with an example that was at the center of the appeal in Hughes v. United States (2018). The issue arose in Hughes because lower courts did not know how to deal with the 4-1-4 split in Freeman (2013). The Marks rule says to look at the positions of the members that concurred in the outcome. In Freeman, there were two positions that together accounted for the outcome: that of four justices (written by Justice Kennedy) and that of Justice Sotomayor, in a solo concurrence. Her position was arguably decided on a &quot;narrower&quot; ground. However, neither the Kennedy plurality nor the Sotomayor concurrence was a logical subset of the other. Justice Sotomayor was not merely agreeing with some but not all of the plurality's reasoning. She came to the same conclusion, but based on a different understanding of the law. Yet some circuits were treating Justice Sotomayor's concurrence in Freeman (with which no other justice had agreed) as the controlling opinion. This is apparently what Marks required. Marks has always been confusing The Marks rule has been a source of confusion in the jurisprudence and academia ever since it was announced. It was not reasoned nor explained by the Court when it was announced. It hasn't been reasoned or explained by the Court since. To the extent that the Marks rule has arguably clear application, it is in cases where the various reasons for judgment of the Court form a &quot;logical subset&quot; or &quot;common denominator&quot; structure. But many times, the reasons don't relate to each other that way (e.g. Freeman). There is sometimes no identifiable &quot;narrowest ground&quot; in that sense, and even where there is, it reflects a minority position of the court: one that none of the other justices agreed with. The Re brief in Hughes Professor Richard M. Re filed an amicus brief in Hughes v. United States (2018) on the topic of the Marks rule arguing that the Marks rule should be abandoned and replaced with the following: A precedent of this Court should form only when most Justices expressly agree on a rule of decision. Re notes that the Marks rule &quot;applies precisely when this Court issues a decision that lacks any majority agreement on a rationale.&quot; He argues that &quot;there is no persuasive reason to treat views that lack majority support as binding, nationwide precedents.&quot; The Court itself has said the Marks rule is &quot;easier stated than applied.&quot; And the Court has never attempted to explain the rule since. Re cites his own paper, &quot;Beyond the Marks Rule&quot; which he says further shows the rule has &quot;defined consistent application by lower courts.&quot; At page 16 of the brief, he describes circuit splits that have developed over an attempt to apply the Marks rule to the reasons of the Court. Hughes gave us no answer Both parties in Hughes presented alternatives to the Marks rule. It was discussed extensively at oral argument. Counsel for the petitioner acknowledged that, &quot;Whatever guidance Marks may have provided, it's probably caused more confusion than -- than guidance.&quot; The arguments contained analogies to Venn diagrams and Russian nesting dolls. Ultimately, the Court in Hughes found it unnecessary to resolve the &quot;proper application of Marks.&quot; Despite granting certiori to address those questions, they were able to resolve the case by skipping directly to the the merits of the substantive question about sentencing. Ramos did not clarify things In Ramos v. Louisiana, 590 U.S. ___ (2020) some members of the Court commented on what Marks might mean. Ironically, the Court in Ramos itself was split without a majority on the meaning of Marks. Justice Gorsuch, writing for three on this issue, said that Marks in fact does not ever result in a single justice's opinion becoming the controlling position. He presented this example: Suppose we face a question of first impression under the Fourth Amendment: whether a State must obtain a warrant before reading a citizen's email in the hands of an Internet provider and using that email as evidence in a criminal trial. Imagine this question splits the Court, with four Justices finding the Fourth Amendment requires a warrant and four Justices finding no such requirement. The ninth Justice agrees that the Fourth Amendment requires a warrant, but takes an idiosyncratic view of the consequences of violating that right. In her view, the exclusionary rule has gone too far, and should only apply when the defendant is prosecuted for a felony. Because the case before her happens to involve only a misdemeanor, she provides the ninth vote to affirm a conviction based on evidence secured by a warrantless search. This is a 4-1-4 split, in which the solo Justice holds the arguably narrowest grounds of decision, one which would be overruling precedent in this hypothetical. Justice Gorsuch says though that Marks &quot;never sought to offer or defend&quot; a rule that &quot;a single Justice's opinion can overrule prior precedents.&quot; Justice Kavanaugh, writing in concurrence, but not agreeing with Justice Gorsuch on his Marks point, said that the Marks rule is &quot;ordinarily commonsensical to apply and usually means that courts in essence heed the opinion that occupies the middle-ground position between (i) the broadest opinion among the Justices in the majority and (ii) the dissenting opinion.&quot; He noted that the members of the Court in Ramos had notably differing opinions about how to apply Marks to Apodaca: &quot;six Justices treat the result in Apodaca as precedent for purposes of stare decisis analysis. A different group of six Justices concludes that Apodaca should be and is overruled.&quot; The dissent in Ramos, written by Justice Alito, was of the view the Marks applied to the ruling in Apodaca and that it produced precedential value that the Justice Gorsuch majority was ignoring. The dissent said that Marks clearly stands for the proposition that &quot;the position taken by a single Justice in the majority can constitute the binding rule for which the decision stands.&quot; Further reading If you're really interested in this, I suggest reading Richard Re's brief and his article, read the parties' briefs in Hughes (petitioner's, respondent's, petitioner's reply), and listen to the oral argument.
if necessary it is possible to simplify it to USA vs EU The European Union is by no means a homogeneous area of law. I will assume france because it is the one I am most familiar with, but bear in mind that much of what follows might not apply to Spain/Germany/etc. The USA is a federal state. In particular, Louisiana law is heavily influenced by civil law for historical reasons. Other states and federal law do, however, follow more or less the same general principles. in common law there is the idea of a precedent, while in civil law not The first part is true. Common law usually hold the principle of stare decisis according to which precedents are binding. That means that the holding of a court binds the same court to rule the same way on similar matters raised later. I would note, however, that courts can be... let’s say &quot;creative&quot;... in finding ways to differentiate the case at hand from the previous one, when the judge is motivated to do so. The latter part is false, or at least, exaggerated. It is true that courts in civil law are not bound by previous holdings; an appeal that raises as its only argument &quot;the court’s decision in my case was different from that in another case without offering any differentiation&quot; would be rejected. However, there is the concept of jurisprudence constante where repeated precedent is highly persuasive. In practice, even simple precedent is persuasive. Furthermore, lower courts are bound by the holdings of higher courts, both in civil law and common law jurisdictions. (That’s more or less the meaning of &quot;higher court&quot;.) in common law a judge plays a role of a person evidence at a court is provided to, while in civil law a judge tries to investigate too in addition That is a distinction between the inquisitorial and adversarial systems. The distinction does not exactly map to the civil/common law systems, but in practice the criminal part of civil law systems is often inquisitorial whereas common law systems are often adversarial. I will first note that the &quot;inquisitorial&quot; part where the judge conducts investigations is vastly overblown. That only occurs in complex cases that require extended investigations with more coercitive powers (for instance seizing documents etc.) Wikipedia says: In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges.[5] The vast majority of cases are therefore investigated directly by law enforcement agencies under the supervision of [the equivalent of district attorneys]. The numbers sound plausible to me, but here’s the ref it gives if you want to check (which I did not bother to do). The most visible part of the distinction is the way witnesses at trial are handled. In an adversarial system, the parties will ask to cite certain witnesses. There are pre-trial motions to exclude certain witnesses for certain reasons, but parties have a wide latitude of which witnesses they want to call. Each witness will come labelled as to which party asked for its appearance. At trial, the witness will be asked questions by the party who called them (direct examination), which will usually take a long time and include nondisputed background information (who are you, for how long have you worked with the defendant, etc.). Then, the opposing party will ask questions (cross-examination), emphasizing points that cast doubt on the witness’s reliability (because they are lying, because they do not remember well, etc.) or on the other parties’ narrative (highlighting details that were conveniently &quot;missed&quot; in direct examination). In an inquisitorial system, witnesses are chosen by the judge. Parties can ask to have witnesses added to the list, but the list does not come with labels that X is coming from the prosecution, Y from the defense. When a witness is called, the judge will ask most of the questions at the start, before giving the floor to the parties. Roughly speaking, the judge does the direct examination, and parties do a cross-examination afterwards. Note that in many cases the parties will ask few or no questions - high-profile cases that you read about in the media are abnormal in that respect. In particular, an inquisitorial-system court maintains a list of expert witnesses, which are called when technical points are required. That expert is paid by the court, not by the parties (however, when one party requests an expertise and the other party opposes it, the requesting party has to pay the cost upfront - they will shift it to the other party if they win the case). That is very different to the adversarial system of having each party introduce testimony by an expert they commissioned and paid. distance between public law and private law is smaller in common law legal system I am not sure I understand that question. It is true that &quot;private&quot; (tort) law operates in an adversarial system both in civil-law and common-law. Therefore, one could argue that the distance between civil-law’s criminal system (inquisitorial) and tort system (adversarial) is higher than between common-law’s criminal and tort systems (both adversarial). However, that is in my view a highly artificial distinction. The distance between practice areas within a single (common law or civil law) jurisdiction is large in any case. You would not want a lawyer specialized in drug-dealing cases to take your case about sexual harassment or unlawful dismissal, and vice-versa, in any jurisdiction.
The phrase "reasonable doubt" was formed hundreds of years ago, and does not hold any mathematical or probabilistic meaning. It is for each individual juror to decide for themselves what constitutes "reasonable doubt", and whether the evidence presented to them has crossed that threshold. EDIT for extra clarity: As stated above, the definition of "reasonable doubt" is intentionally vague*, and left to be decided by each juror for themselves on a case by case basis; as such there is no single rule that can be applied to jurors (also note barring accepting a bribe, a juror cannot be legally sanctioned for their conduct as a juror, nor their vote, regardless of the evidence before them). So one juror might judge by P(A|B), another might judge by the defendant's appearance, another might judge by the majority of their peers (so that they can go to a ball game that evening, such as in the film 12 Angry Men), another might disagree with the law (see: jury nullification) and so vote not guilty on that basis, and another might bow to social pressure and convict despite overwhelming evidence that the defendant is not guilty (for example, at the end of To Kill A Mockingbird). A prosecutor cares about convincing the entire jury that the defendant is guilty(outside of Oregon and Louisiana, where only 10/12 vote is needed to convict, so the prosecutor only cares convincing 10 jurors). The defense only cares about convincing a single juror (or three in LA or OR), although more can be useful to prevent a mistrial. The defense (in theory) should not care whether or not the defendant is guilty. *The origin of reasonable doubt was in Britain, where certain jurors would refuse to convict, despite any evidence, due to religious prohibitions of "Judge not, less ye be judged".
This is an opinion question, even if it doesn't seem like one. The life work of many professors is trying to explain the current system of review. One theory that is fairly well accepted relates to the concept of deference to other political actors. To understand this theory, we need to begin by recognizes that the Court is not unilaterally adjudicating political rights; it is one of many actors that all have some stake in making Constitutional decisions. The Court recognizes this, even if it also demands that it get last word on whether or not it gets last word. In footnote four of Caroline Products the Court laid the foundation for the modern equal protection doctrine. That text embraced a constitutional scheme whereby rights are given judicial protection primarily if they are unlikely to be given political protection by the other branches of government. Under this scheme, we care about groups that are politically weak or political distant from those with power. This equal protection jurisprudence is an example of deferential thinking; we trust the political branches generally unless there is reason to doubt the effectiveness of the political process. The deferential thinking approach to constitutional law holds that we do the same for many other area of Constitutional law. A given enumerated right is only Scrutinized strictly by the courts if the courts don't trust the other political actors (States, Legislature and Executive), to adequately protect that right. As I said, that is a theory. Not everyone agrees that this is what is going on or that this is what should be going on. Moreover, many enumerated rights are protected under a very strict level of review. Strict review and "strict scrutiny" are similar ideas, with the latter being a term of art and the former being a reasonable description of how much attention courts will pay to protecting a given right.
Does the Supreme Court simply rubberstamp the prevailing social consensus? No. Structurally, The Supreme Court Is Designed To Lag Behind Social Consensus U.S. Supreme Court justices are political appointees with discretion over how laws are interpreted and enforced in the U.S. that cannot be reviewed by any other body, in the case of constitutional law, and can only be second guess by Congress and the President acting together, in the case of statutory law. Since U.S. Supreme Court justices serve for life, they tend to be lagging indicators of the political preferences of past Presidents. Plessy v. Ferguson was influenced by post-Reconstruction judicial appointments trying to salvage what it could from the end of the slavery regime for former slave states, although Congress could have overruled it with new legislation if Senators from Southern states hadn't filibustered that kind of legislation in the U.S. Senate. Still, while the law changes slowly, and the U.S. Supreme Court is often a lagging indicator of the prevailing social consensus, it is not frozen in time either, both because legal norms change over time, however slowly, because statutes and constitutional amendments change the environment in which the U.S. Supreme Court operates, and because sometimes the law commands them to do so. For example, in 8th Amendment jurisprudence (the prohibition against cruel and unusual punishments), the &quot;unusual&quot; part of &quot;cruel and unusual&quot; has always incorporated prevailing social consensus, by design and by virtue of the express constitutional text. Precedent Still Matter Precedents also matter, however. U.S. Supreme Court Justices, while they may be influenced by a political ideology that had a lot to do with why they were nominated in the first place, are not simply legislators in robes. While the U.S. Supreme Court is well known for its partisan split votes on close political issues, there are many areas of law where the U.S. Supreme Court is still far less partisan than elected officials, and often, split decisions in the U.S. Supreme Court on less politically charged issues are not along partisan lines. U.S. Supreme Court Justices cross partisan lines far more often than elected officials do, and the amount of partisan line crossing that takes place in courts below the Supreme Court that have a legal duty to follow the precedents of courts superior to them is even greater. At the time of Dred Scott and until the 13th Amendment was passed in the wake of the U.S. Civil War, slavery was legal and its legality had never been seriously doubted in U.S. legal precedents. Precedents at the time, including a series of highly sensitive legislative and constitutional compromises already agreed to by other parts of the government, supported this ruling, whether or not it was good policy. Obergefell v. Hodges, followed a nearly unanimous groundswell of support for the position that the U.S. Supreme Court ultimately took from state courts and lower federal courts, applying a variety of precedents already in place going back to Griswold v. Connecticut, 381 U.S. 479 (1965), which affirmed that the fundamental rights found in the Fourteenth Amendment's Due Process Clause &quot;extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,&quot; but the &quot;identification and protection&quot; of these fundamental rights &quot;has not been reduced to any formula,&quot; and Loving v. Virginia, 388 U.S. 1 (1967), invalidating laws prohibiting interracial marriage. The lesser known cases of Zablocki v. Redhail, 434 U.S. 374 (1978) (invalidating a Wisconsin law limiting the right of non-custodial parents to remarry), and Turner v. Safley, 482 U.S. 78 (1987) (allowing prison inmates to marry without state permission) had also established a constitutional right to marry. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down a Colorado law that barred local governments from protecting gay rights. In 2003, the Supreme Court in Lawrence v. Texas struck down Texas’ sodomy law - and in turn invalidated sodomy laws in 13 other states - making private, consensual, adult sexual activity between same-sex couples legal across the U.S. In United States v. Windsor (2013), the Supreme Court held that a same sex couple legally married in Canada could not be denied the federal estate tax spousal deduction invalidating Section 3 of the Defense of Marriage Act as unconstitutional. The same day, in Hollingsworth v. Perry (2013), the Supreme Court held that California Proposition 8 (note that a majority of voters in this very liberal state passed this measure in 2012 suggesting that allowing same sex marriage was not the prevailing social consensus) which prohibited California from recognizing same sex marriages lawfully entered into after a couple prevailed in a 2009 court fight to secure same sex marriage rights under prior California law was unconstitutional. In 2015, SCOTUS responded not to a public opinion social consensus, but to a legal consensus among U.S. appellate judges driven by its own precedents. Many states in which judges struck down same sex marriage bans before the U.S. Supreme Court took up the issue did so in states where same sex marriage was not popular, because fifty years of accumulated precedents from 1965 to the present strongly pointed in that direction. As a result, on the eve of the Obergefell decision, 37 states and the District of Columbia already recognized same-sex marriage, and only 13 states had bans. Those bans were mostly struck down as a result of lower courts interpreting existing U.S. Supreme Court precedents like the ones mentioned above, and as a result of legislators seeing the writing on the wall and wanting to take credit for the inevitable. The act of nationalizing the right to same-sex marriage also reflected the reality that even though the constitution allocated regulation of marriage to the states rather than the federal government, as a general matter, that allowing a particular couple's marriage to be recognized in some U.S. states and not others, was basically unworkable in a country with freedom of travel between states. SCOTUS Often Establishes The Prevailing Social Consensus Also, while sometimes the U.S. Supreme Court does give official recognition to the prevailing social consensus (which is closely related to what becomes law by one means or another anyway), perhaps more often, a U.S. Supreme Court ruling establishes and changes the prevailing social consensus. Support for interracial marriage in opinion polls, which wasn't terribly high when Loving v. Virginia was decided in 1967, soared after the U.S. Supreme Court declared it to be a matter of constitutional law. A question from a 1968 international Gallup poll underscores the extent of U.S. opposition to interracial marriage during this period. This question, which asked Americans and those in 12 other nations whether they personally approved or disapproved of marriage between whites and nonwhites, found even broader U.S. opposition than the 1965 question. More than seven in 10 Americans (72%) disapproved of white-nonwhite marriages, in contrast with only 21% of residents in Sweden, 23% in the Netherlands, 25% in France, 34% in Finland, 35% in Switzerland and 36% in Greece. Opposition outweighed support in Austria, Canada, West Germany, Norway, Uruguay and Great Britain, but to a far lesser extent than in the U.S. The 1965 and 1968 U.S. reactions to interracial marriage appear contradictory, but this is because each question measures a different dimension of public opinion. The 1965 question asks for people's views on the legality of interracial marriage -- whether it should be a crime -- whereas the 1968 question merely asks Americans whether they personally approve. Americans' personal views on interracial marriage eventually changed, but it took decades for majority support to emerge. In 1978, more than a decade after the Loving case, only 36% of Americans approved, while 54% still disapproved. Not until the 1990s did public approval cross the 50% threshold, registering 64% in 1997. Gallup's latest update, in 2013, shows 87% approving. (Source) Support for same sex marriage has followed a similar pattern after Obergefell v. Hodges was decided. Roe v. Wade (creating a constitutional right to medical abortion) and Griswold before it (creating a constitutional right to contraception and clearly establishing the concept of substantive due process rights to privacy), likewise dramatically changed public opinion on these issues. So, while the U.S. Supreme Court is sometimes a lagging indicator of a social consensus that is already prevailing, its moral authority and the inability of any other political actors to overcome the legal force of its rulings has also caused it to be a major driver of social consensus going forward. For example, until Brown v. Board of Education (1954), Plessy v. Ferguson was widely accepted as a legally fair standard and the support really only entirely collapsed when the U.S. Supreme Court said otherwise. Indeed, Brown v. Board of Education probably was pivotal in shifting public opinion in a manner that led to the adoption of the Civil Rights Acts of 1964 that finally put teeth into the political resolve to end racial discrimination that had begun in earnest in the Reconstruction era.
No. It means the existence of reasonable doubt is in doubt... One cannot conclude the question of guilt in either direction, so one must try again to see if a different jury can answer the meta-question, to then answer the legal question of guilt. ... or is not being addressed If only one person is voting against the consensus, or as many as are allowed by the jurisdiction, they are overruled. That's the allowance made for bias that has somehow reached the jury despite the filtering done beforehand. If more people are voting against the majority so that consensus is not possible, it is potentially because someone has made up their mind on the question of guilt regardless of what (some significant part or the weight of) the evidence indicates, defeating the purpose of the trial and providing all the evidence. A person not accounting for all the evidence can't be said to have reasonable doubt of guilt, since the doubt may be excluded by the remaining evidence. Similarly, guilt beyond reasonable doubt cannot be supported by only partial evidence, as exculpatory evidence may be among the part not accounted for. ... or cannot be addressed by that jury at all. Finally, a jury split on the decision of how to weigh the evidence cannot claim either to have or to have dismissed reasonable doubt, because they cannot agree on what a reasonable doubt is, in the first place.
What are the legal consequences of substantive factual errors in an opinion? None. I assume that this specific ruling is not affected in any way by the text of the opinion? Correct. I assume that even an opinion of the form &quot;We got high and decided to rule wrongly for fun&quot; wouldn't actually negate the ruling? Probably not, but it might precipitate a constitutional crisis or lead to an impeachment. How does this affect the precedent? It doesn't. Will courts in the future consider the true facts of the case (whatever they perceive them to be), No. will they accept as legal fiction that the facts were as the Court describes them? Yes. Could it be legal for the district to repeat exactly the same set of actions in exactly the same set of true circumstances as before, since those won't be the same circumstances that the Court claimed to rule on? In such a case, is the lower court bound by the Supreme Court's characterization of the facts of the case, Generally speaking the lower courts are bound by characterizations of the facts made by the appellate court. But, it depends to some extent on the procedural posture of the case. In most cases, the findings of fact made by the trial court following an evidentiary hearing are binding on appellate courts in the U.S. unless they are not supported by any admissible evidence presented at trial, but there are some exceptions to this rule and there is considerable art as well as science that goes into properly characterizing the evidence presented at trial. But, for example, many appellate cases are appeals from a dismissal of a case on a motion to dismiss at the outset of a case, in which all allegations of the Plaintiff's complaint in a civil matter are taken as true for sake of argument, and the legal issue presented is whether the Plaintiff can prevail if all of those facts are true. In a case in that procedural posture, assuming that the appellate court reversed the trial court and found that the facts alleged state a claim upon which relief can be granted, then the remand would be to move forward with discovery and other pre-trial procedures in the case and ultimately a trial, if necessary, to determine the actual facts of the case as opposed to the facts as alleged by the Plaintiff in the complaint or petition. Not infrequently, when appellate courts are divided over what happened in the trial court, one side of the debate, looking at the raw testimony and exhibits presented at trial, will conclude that the admissible evidence presented at trial did not support the findings of fact in a mixed question of fact and law made by a trial court judge, while another side of the debate will accept the trial court judge's findings of fact uncritically. It often isn't easy to know, from reading an appellate court opinion alone, which side is which in this regard. can it use the true facts of the case as long as it obeys the ruling itself? Usually not. Usually, facts relied upon by an appellate court are by definition the correct facts (apart from clerical errors - e.g., an appellate court once misspelled my name in a court opinion, and the lower court wasn't bound by that mistake). This said, as noted above, the precise procedural posture of the case, nature of the court's opinion, and scope of the remand order is highly relevant to what a court can do on remand.
In any court, there will be situations where a judge has discretion to make some decision. The judge might have to decide "did X meet the burden of proof", and due to the situation two reasonable and competent judges could come to different conclusions. You couldn't blame either for the decision, even though they would make opposite decisions. On the other hand, a judge might make gross mistakes. The judge might decide "X met the burden of proof" when this is clearly a mistake. That's what the appellate court is interested in. An appellate court checks whether the judge made mistakes that a judge shouldn't make. So in this situation, the appellate court doesn't decide whether X met the burden of proof. The appellate judge decides "did the trial judge make a decision that a trial judge shouldn't have made". An appellate judge might think to himself or herself: "well, I would have decided differently, but this trial judge’s decision was one that a reasonable judge could have made", and if that is what he or she thinks, the original decision will stay intact.