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.
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