Vanderbilt Law Review

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In his provocative article, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals,' Professor John M. Rogers has provided a valuable opportunity for those of us interested in the structural aspects of appellate court decisionmaking--especially Supreme Court decisionmaking--to step back, to compare notes, and to evaluate an increasingly prominent proposal for institutional reform. More importantly, this Colloquium provides an opportunity to explore more deeply several anomalies associated with appellate court decisionmaking. At the outset, I should emphasize that while he devotes a considerable portion of his article to evaluating my scholarship on appellate court decisionmaking, as Professor Rogers himself observes, none of my three articles on appellate court voting contains any of the "Radical Proposals" to which Rogers's title refers. In fact, a careful reading of Professor Rogers's article reveals a considerable range of agreement between us. We both agree, first and foremost, that proposals to replace outcome voting with issue voting on appellate courts are misguided; second, that Arrow's Theorem provides a critical benchmark with which to analyze and compare institutions to avoid the "nirvana fallacy"; third, that to the extent cycling is a problem in a given collective decisionmaking body, that institution, by operating in conjunction with another collective decisionmaking body, can reduce cycling; and finally, that the standing doctrine serves to ameliorate the problem of path dependence in appellate courts, including the Supreme Court, by grounding the critical path of case decisions, at least presumptively, in fortuitous factors beyond the control of the litigants themselves. This level of agreement is striking, especially in an area of scholarship typified by such sharp division as that surrounding the jurisprudential implications of social choice.

Given the extent of our apparent agreement, it might appear curmudgeonly of me to dwell on our points of contention, which some may view as details between two scholars who are mainly in accord. But I hope to show in this Reply that getting to the right outcome-that issue voting in appellate courts is a fundamentally bad idea-if for the wrong reasons, will not do." Social choice provides a uniquely powerful set of analytic tools, which may explain its broad- based appeal. But when basic social choice terminology is distorted, or its basic principles applied inconsistently, as unfortunately occurs at several points throughout Professor Rogers's article, meaningful debate becomes difficult, and the promise that scholarship will advance our collective understanding is rendered illusory. I do not intend to suggest that Professor Rogers's article fails to make a significant contribution. In fact, I hope to show that what I perceive to be the article's major contribution-that the potential number of paths that may be created in appellate courts using issue, rather than outcome, voting is considerable--fits nicely with my broader positive analysis of appellate decisionmaking based upon social choice.

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