Probabilistic Interpretation, Part 2

That is the title of our most recent work in progress; one of the research projects we were working on while we were on sabbatical. (Part 1 of the paper will be published in the University of LaVerne Law Review this spring and is available here.) Part 2 presents Lon Fuller’s “Case of the Speluncean Explorers,” one of the most famous thought experiments in legal studies. In our paper (part 2), we imagine an alternative system of voting by appellate judges, a bayesian or cardinal voting system in which judges assign a score to their preferred judicial outcome. Appellate courts generally use an ordinal system of voting (i.e. one judge, one vote) to decide cases. By contrast, we propose a simple cardinal voting system for deciding appellate cases, using Fuller’s hypothetical case to illustrate how our simple system of cardinal voting would work in practice.

Image credit: Wikimedia Commons

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3 Responses to Probabilistic Interpretation, Part 2

  1. Craig C says:

    Interesting ideas. Another “wrinkle” if you will in adopting a cardinal voting system is the possible dilution of faith/respect by the public in the stances/opinions of individual judges. In our system, a judge is expected to take a line of reasoning to its conclusion and render *one* opinion. A judge who pulls his/her punches, so to speak, by spreading his/her vote among various alternatives may be seen as weak or vacillating. Our society has a strange admiration for those who have the courage of their convictions, even when they are flat wrong. A barrier to cardinal voting is the need to re-educate people on this point.

  2. Pingback: Upcoming talk  | prior probability

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