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49 Vand. L. Rev. 997 (1996)
Issue Voting by Multimember Appellate Courts: A Response to Some Radical Proposals

handle is hein.journals/vanlr49 and id is 1011 raw text is: Issue Voting by Multimember Appellate Courts: A Response to Some Radical Proposals John M. Rogers* I. INTRODUCTION ................................................................... 997 II. PROBLEMS WITH ISSUE VOTING ......................................... 1001 III. SUPPOSED PROBLEMS WITH OUTCOME VOTING ................. 1007 A. Usable Precedent .................................................... 1007 B. Encouraging Lawyers to Make Insubstantial A rgum ents .............................................................. 1011 C. Legal Incoherence ................................................... 1012 D. Path Dependence .................................................... 1014 IV. THE INSTABILITY OF ISSUE VOTING ................................... 1021 V. A DEFENSE OF OUTCOME VOTING AGAINST THE CLAIM THAT IT DOES NOT PRODUCE THE CONDORCET WINNER. 1025 VI. CONCLUSION ...................................................................... 1038 APPENDIX ........................................................................... 1040 I. INTRODUCTION A judge on a multimember appellate court can vote against the result of his or her own reasoning by deferring to a majority on a subissue on which the judge differs. When Justice White did just this in Pennsylvania v. Union Gas,' soon followed by a similarly anoma- lous vote by Justice Kennedy in Arizona v. Fulminante,2 I examined the pool of United States Supreme Court cases in which this kind of voting was possible.3 Out of more than one hundred fifty earlier cases where one or more of the justices might have voted in such a way, * Brown, Todd & Heyburn Professor, University of Kentucky College of Law. I would like to thank Rutheford Campbell, Michael Healy, and Maxwell Stearns for making helpful comments on earlier drafts (without necessarily agreeing with my arguments). 1. 491 U.S. 1, 56-57 (1989) (White, J., concurring in part). 2. 499 U.S. 279, 313-14 (1991) (Kennedy, J., concurring in the judgment). 3. See John M. Rogers, 'T Vote This Way Because I'm Wrong. The Supreme Court Justice as Epimenides, 79 Ky. L. J. 439 (1991). 997

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