CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 30, 2021

Conti-Brown on Marks and Sentencing Reform

Peter Conti-Brown (University of Pennsylvania - The Wharton School) has posted The Principled Leadership of Middle Management: Stephen F. Williams’s Liberal Critique of Marks (Yale Journal on Regulation, Vol. 38, No. 3, 2021) on SSRN. Here is the abstract:
Most law students spend their first year—or sometimes much longer—struggling to discern legal rules from judicial opinions. That is true even for relatively straightforward opinions. When they encounter splintered opinions—especially cases where no opinion commands a majority—the exercise becomes more difficult even for the most seasoned lawyer.

The U.S. Supreme Court, in an effort to add coherence to these not-infrequent instances of judicial disarray, created a rule to guide this process. The so-called Marks rule instructs courts, including the Supreme Court itself, to honor horizontal and vertical stare decisis even in the face of splintered decisions by discerning what proposition, if appropriately narrowed, would have commanded a majority. It is a hypothetical exercise and a controversial one. Legal scholar Richard Re has recently recommended that we cast it aside entirely, a position I embrace below.

In this Essay, I will walk through a recent controversy involving Marks as tribute to one of the masters of the judicial craft, Stephen F. Williams. Although not my area of scholarly expertise—nor was it his, for that matter—I will explain Judge Williams’s deep commitment to individual liberty, especially when criminal defendants faced terms of incarceration that the law arguably did not support. Judge Williams knew the law and understood the arts and sciences of judging. He knew that that science imposed limits on the exercise of his own arbitrary will. But he knew too that law’s frequent indeterminacy—even and especially when the Supreme Court was the source of that indeterminacy—meant that he had to exercise his own judgment, even if that judgment ran counter to those of some or many Justices of the Supreme Court.

| Permalink


Post a comment