Friday, May 12, 2006
The "Marks" rule
I didn't get into it in this post, but I should mention that the opinion doesn't really explain how the "Marks" rule is being used. One could argue that the Banerjee dissent is narrower than the White dissent when defining active campaigning, but there's no obvious continuum for "narrow" and "broad" reasoning when it comes to defining the number of appropriate censures. The one-censure reasonings are:
Finally, one censure would be deserved for unintentionally chalking within 100 feet of the polling stations because the boundaries had not yet been clearly marked, which was not removed after the violator became aware of it.
One censure should be applied to a candidate who unknowingly commits the violation, and once informed, takes action to remedy the mistake.
Note that one reasoning cannot be subsumed in the other, because each has mutually exclusive factual requirements. The JRPs state:
In the event that the Justices cannot reach a decision that satisfies a majority, the "Marks" rule shall apply when determining the binding decision. According to the "Marks" rule, "when a fragmented [Council] decides a case and no single rationale explaining the result enjoys the assent of [a majority of the Justices], 'the holding of the [Council] may be viewed as that position taken by those Justices who concurred in the judgments on the narrowest grounds.'" In the final decision, the Council shall state the narrowest rationale for the decision.
The decision does not state the rationale used in the final decision:
We subscribe to the "Marks" Rule in issuing a ruling based on the narrowest grounds such that the opinions concur. The majority of the Judicial Council believes that the chalkings did violate 4.13.3.8, and we hereby issue three censures to each member of the Student Action executive slate.
The rationale is not stated here, and I think this ruling has been issued in error. In any case, there is no majority opinion on the number of censures, rationales aside.
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