Independent scholar David Post (via the Volokh Conspiracy) recently brought the following “wild voting paradox” to our attention. In general, appeals at the federal level are decided by a panel consisting of three judges. Now, let’s imagine a case involving two legal issues on appeal, such as standing and immunity. Let’s say judges A and B believe that the original plaintiff has “standing” (i.e. may bring an action against the defendant), while judges B and C think that the original defendant is not immune from legal liability as a matter of law. In other words, only one judge–Judge B–thinks the plaintiff has standing and that the defendant is not immune from liability, so the defendant should win this hypothetical case on appeal, right? Not so fast … The “wild voting paradox” here is that the final outcome in this case depends on which voting rule (or “voting protocol”) the judges use to decide this case. If the judges adopt an “outcome voting” rule, for example, then the defendant will win the appeal, but if the judges follow an “issue voting” rule instead, then the plaintiff will win because one coalition of two judges believes that the plaintiff has standing while another coalition of two judges believes that the defendant does not have immunity from liability. Continue reading →