The One and the Many: Adjudication in Collegial Courts

Abstract

This Article explores a problem that may occur in appellate cases in which two or more issues present themselves. In these problematic cases, the court may reach a decision as to outcome in one of two ways, either by summing the votes of individual judges as to the outcome of the case overall, or by summing the votes of individual judges on each of the issues and then combining the results. The two methods of decisionmaking can lead to different results. This "doctrinal paradox" is unfortunate because cases are supposed to be decided on their merits rather than by an unconsidered choice of voting protocoL Professors Kornhauser and Sager argue that neither of the decisional methods is always superior. Rather, appellate courts, as "collegial enterprises, " should directly confront the doctrinal paradox when it arises and deliberately determine the method of case decision that will control Professors Kornhauser and Sager suggest that the best method for choosing between decisional methods is a "metavote," with members of a court voting for a particular method after discussing such factors as whether the outcome or rationales for it are more important, whether the issues to be decided are independent, the seriousness of the consequences of the outcome, hierarchical management concerns, and internal management considerations. Lewis Kornhauser has pursued, in an analytically more formal environment, several themes connected to our work here.

A Complete Conclusion-Based Procedure for Judgment Aggregation

“…This "evolutionary" impact over the decision making process has been an important issue in the work that gave rise to the interest in judgment aggregation [9,10], but it has fallen out of scope in the more formal study of judgment aggregation.…”

“…Judgment aggregation [9,10,12] studies the aggregation of individual judgments of small groups such as expert panels, legal courts, boards and councils. We talk about judgment aggregation whenever a group of individuals needs to make a collective decision on a finite set of issues, and these propositions are logically connected.…”

A measure of distance between judgment sets

“…This is illustrated by Kornhauser and Sager's (1993) celebrated example. 2 Suppose that there are three judges who must collectively decide on a case of breach of contract.…”

Corporate Responsibility and Judgment Aggregation

“…The famous example of the kind of discrepancy that lies at the source of the arguments mentioned concerns a multi-member court that has to decide whether a defendant is liable under a charge of breach of contract (Kornhauser and Sager 1993). In order to establish whether the defendant is indeed liable the court has to consider the following two propositions:…”