David Post wrote this very informative piece for Volokh Conspiracy about last week’s Hanover 321 ruling, entitled “Wild voting paradox case in the 3rd Circuit.”
It must happen a lot. And it is, one would think, quite fundamental to how appellate courts go about their business.
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You would think that the hundreds of appellate courts in this country would — long ago — have addressed this matter, and come up with a procedure or protocol that they would follow when performing this most basic of their functions. Indeed, one might even say that a multi-member court can’t really go about its business of deciding cases until it first decides how it is going to decide — by outcome-voting or by issue-voting.
But in fact, there are only a handful of examples where courts publicly address their choice of voting procedure or their views on the proper means to resolve the Paradox.
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So the issue is — finally! — joined; I’m not aware of another case that engages the issue as forthrightly, nor one that lays out the opposing positions as clearly.
Well worth reading in full.
Also of possible interest is this reddit thread on the case.
An additional irony of this particular voting paradox is that any attempt to solve the paradox through a vote would itself potentially be subject to the paradox 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?
(2) which voting protocol should we adopt?