Issues and Outcomes, Guidance, and Indeterminacy: A Reply to Professor John Rogers and Others
There is now a small but growing literature on the proper voting procedure for multijudge panels. Professor John Rogers began the most recent round of thinking about these vexing issues, arguing that a judge on a multimember panel should never "vote against the result of his or her own reasoning by deferring to a majority on a sub-issue on which the judge differs." We responded, arguing in favor of just such action, which we labeled "issue voting." We criticized Professor Rogers's preferred mode of multimember court adjudication, which we labeled "outcome voting," on the grounds that it provided limited guidance and inevitably produced path dependence and incoherence in the law. Professors Lewis Kornhauser and Lawrence Sager presented a third position that "no simple rule favoring one voting protocol in all paradoxical cases can produce universally appealing results." They set forth a mechanism, which they called the "metavote procedure," by which courts would resolve the question of which of these two voting rules to adopt in any particular case. Professor Maxwell Stearns also has examined these issues in detail, from a social choice perspective. Rogers now joins the fray once again, calling for blanket adoption of outcome voting for multimember courts, finding our arguments (and Kornhauser and Sager's) unpersuasive on a number of grounds.
Professor Rogers's critique makes it clear that we did not deal with these questions definitively in our earlier paper. We are still unpersuaded, however, that his solution is the better one. In this brief Reply, we will sketch out a partial answer to Rogers's concerns.