New opinion — a glorious panel-voting mess, plus a correction

Hanover 3201 Realty v. Village Supermarkets — antitrust — vacate in part — Fuentes

This is an antitrust case that arose out of a real-estate dispute between two supermarkets. The outcome of the appeal turns on two issues: standing and the merits. The three judges on the panel all disagreed on the issues and the outcome, and the result is simply appeals-nerdtastic.

Judge Ambro’s concurrence cogently explains:

This case presents what academic literature terms a “voting paradox.” On the one hand, two judges (Judge Greenberg and I) believe that the outcome should be that Hanover’s suit not proceed, though we do so for different reasons. However, one majority of this Court (Judges Fuentes and Greenberg) believes that Hanover has antitrust standing (I do not because I do not discern antitrust injury), while another majority (Judge Fuentes and I) believes that Hanover should survive Village’s motion to dismiss (assuming it has antitrust standing). The paradox is that, if I vote on the judgment of this case (affirm or reverse) based on my individual views, a majority of the Court will have ruled against the prevailing party on each relevant issue, meaning that our Court’s reasoning would not support its judgment. However, if I follow, despite my dissent, Judge Fuentes and Greenberg on the antitrust standing issue, my individual vote would be inconsistent with my view of who should win were I alone ruling.

He explains the choice is between “issue voting” and “outcome voting”:

Broadly speaking, the former occurs when a judge surveys the holding on each question of law presented; a majority vote on any given issue counts as a holding of the court, and the remaining judge is bound by it as if it occurred in a prior precedential case.5 The latter, and more common, scenario occurs when a judge votes on the result of a case (affirm, vacate, reverse, etc.) according to his or her view of the proper outcome and without regard to the views of the other judges on a panel. Even if a careful reading of the judges’ opinions in a case shows that a majority would rule for the losing party on each relevant issue, an outcome-vote, as that term is usually used in the relevant literature, results in a win for the party the majority of judges think should win regardless of reasoning.

Here, the panel chooses issue voting — here again the panel is divided, naturally. (On a first read, I tend to agree with Greenberg on the voting issue.) It is a glorious confusing mess, dear readers, and I guarantee you’ll love it.

The panel was Fuentes, Ambro, and Greenberg. Arguing counsel were double Tarheel Lindsey Taylor of Carella Byrne for the appellant and Anthony Argiropoulos of Epstein Becker for the appellees.


Also today, the court corrected the error in Tuesday’s Google Cookie case that I spotted, and also corrected a typo in September’s Tonnage Clause case.

1 thought on “New opinion — a glorious panel-voting mess, plus a correction

  1. Enrique Guerra-Pujol

    The irony of this particular voting paradox is that any attempt to solve the paradox through a vote will itself be subject to the paradox! Why? Because a vote to decide which voting protocol to adopt (i.e. outcome voting or issue voting) itself consists of two separate issues: (1) should we take a vote on which protocol to use, and (2) if the answer to #1 is yes, then which voting protocol should we adopt?

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