Many years ago, when I was fresh out of law school, I wrote my first law review article (with friend and colleague Steven Salop, who had been one of my professors at Georgetown) on a rather startling paradox, one that was inherent in appellate judicial decision-making but which had received surprisingly little attention up to that point from commentators or courts.  (We called it the Tidewater Paradox, after a Supreme Court case from the 1940s that illustrated the paradox in a particularly clear way.)

The Tidewater Paradox, in its most basic form, looks like this. Suppose a three-judge appellate panel hears an appeal of some garden variety tort or contract action raising two issues:  e.g., whether plaintiff had standing to sue and whether plaintiff proved the required elements of the cause of action. Each of the three judges — let’s call them Jefferson, Hamilton, and Madison — having read the briefs and listened to oral argument, independently reaches the following conclusions about the case:

                           Does P have standing?          Did P prove the required elements?       Outcome: Who wins?

Jefferson                               YES                                                                           NO                                                             DEFENDANT

Hamilton                              NO                                                                             YES                                                           DEFENDANT

Madison                                 YES                                                                            YES                                                          PLAINTIFF

Who wins this case?  The court believes (2 to 1) that plaintiff has standing, and (2 to 1) that she has proved the required claim elements. So plaintiff should win, right?  But two of three judges think the defendant should prevail — should that carry the day?

What do courts actually do — and what should they do — when they’re faced with a situation like this?  When our three judges meet in conference to decide the case after argument, does Jefferson, the senior judge, say “Okay, let’s go around the table.  I think P has standing here, because blah blah …  What does each of you think? …”  And then, after doing the same thing for issue 2, the court issues its judgment for the plaintiff.

Or does Jefferson give his view of the preferred outcome (“I’m for D.  P never proved element 2 of the cause of action.”) and then poll the other two judges for each of their preferred outcomes, after which the court issues its judgment for the defendant?

It must happen a lot.  And it is, one would think, quite fundamental to how appellate courts go about their business.

[The first of the Obamacare decisions provided an important recent example of the paradox in action; as I blogged about at the time (here and here ), the question of whether the court issued a precedential “holding" on the question of whether the Obamacare statute was invalid under the commerce clause depended on whether one views the court’s decision-making process as involving outcome-voting or issue-voting.]

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.

Salop and I argued that while outcome-voting appears to be the (unspoken) norm for appellate courts, outcome-voting “cannot guide lower courts, leads to an incoherent body of precedent, and sacrifices the benefits of collegial decision-making,” and that the issue-voting protocol is — at least in most cases — a “superior decision-making procedure.”

Which brings me to the U.S. Court of Appeals for the 3rd Circuit decision handed down last week (Hanover 321 Realty v. Village Supermarkets, available here), where the panel members forthrightly engage with the question of developing what one of them refers to as a proper “voting protocol protocol.”

Here’s the case, in a nutshell. Hanover Realty, the plaintiff, signed a contract with Wegmans to build a Wegmans supermarket on Hanover’s property. Hanover was required to secure all necessary governmental permits and approvals prior to breaking ground. The defendant, Village Supermarkets, owns the local ShopRite supermarket, and, not particularly thrilled that Wegmans would be entering the market, filed “numerous administrative and court challenges to Hanover Realty’s permit applications.” Hanover, “believing these filings were baseless and intended only to frustrate the entry of a competitor,” sued defendants for antitrust violations.

The court addressed two issues on appeal. First, did plaintiff Hanover have standing to bring an antitrust claim (given that it was neither a competitor nor a customer of the defendant’s)?  And second, was defendant immune from the antitrust claims under what is known as the Noerr-Pennington Doctrine — a rather abstruse bit of antitrust law that “provides broad immunity from antitrust liability to those who petition the government, including administrative agencies and courts, for redress of their grievances.”

The three judges on the panel split as follows:

                           Does P have standing?                  Is D immune under Noerr?            Outcome: Who wins?

Fuentes                                       YES                                                                           NO                                                       PLAINTIFF

Ambro                                         NO                                                                             NO                                                      DEFENDANT

Greenberg                                  YES                                                                            YES                                                     DEFENDANT

The court – – much to the evident dismay of Judge Greenberg — issues a judgment for the plaintiff .

Judge Ambro, though he would have ruled for the defendant were he deciding the case on his own, sides with Fuentes in ruling for the plaintiff:

I respectfully disagree with my colleagues’ view that Hanover 3201 Realty has suffered antitrust injury, a necessary component of antitrust standing…. However, I recognize that my colleagues’ view of antitrust standing is, by virtue of their ruling, the holding of our Court and now the law of this Circuit. In this context, I believe I am obliged to consider the merits of Hanover’s suit…. I agree with Judge Fuentes that Village’s Noerr–Pennington immunity defense is a sham and hence unavailing at this stage. Thus I vote [in Plaintiff’s favor] to vacate the judgment of the District Court [which had dismissed Plaintiff’s claim.] (emphasis added)

Ambro expressly adopts an issue-voting protocol for the case, and provides a lengthy rationale for doing so.

This case presents what academic literature terms a “voting paradox.” On the one hand, two judges (Judge Greenberg and I) believe that the outcome should be that Hanover’s suit not proceed, though we do so for different reasons. However, one majority of this Court (Judges Fuentes and Greenberg) believes that Hanover has antitrust standing (I do not because I do not discern antitrust injury), while another majority (Judge Fuentes and I) believes that Hanover should survive Village’s motion to dismiss (assuming it has antitrust standing).
The paradox is that, if I vote on the judgment of this case (affirm or reverse) based on my individual views, a majority of the Court will have ruled against the prevailing party on each relevant issue, meaning that our Court’s reasoning would not support its judgment. However, if I follow, despite my dissent, Judge Fuentes and Greenberg on the antitrust standing issue, my individual vote would be inconsistent with my view of who should win were I alone ruling.
But to me it is significant that we are not acting alone. Because we need to act as a Court, I think it is more appropriate for me to be bound by the majority’s opinion on antitrust standing despite my disagreement with it.

He also points to the “problem of incoherent precedent” if the court adopts outcome-voting — ruling for the defendant even though a majority of the court believes that Hanover has standing and a majority believes that the defendant is not immune.  Why not, he asks, “just issue judgment orders without reasoning in every case and save everyone a lot of time and paper”?

In my view, we issue judgments accompanied by reasoned opinions because the rule of law ought neither to be nor appear to be arbitrary. It follows that judgments should be supported by reasoning, that the reasoning should actually support the outcome in a particular case, and that in this case I should yield to my colleagues on antitrust standing and vote on the Noerr-Pennington issue that follows.

He suggests the following meta-principle — the voting protocol protocol — to guide the court in the future:

As we have seen, appellate judges have little to guide their discretion in choosing a voting protocol. This case prompts me to argue for one guidepost: when an appellant raises “arguments that would constitute independent appeals were interlocutory appeals permissible,” issue voting is preferable.

Judge Greenberg, dissenting, disagrees:

Although it is not my place to tell Judge Ambro how and on what issues to vote, I write here to express my view that a multimember panel should reach the result that follows from the independent views of its members. Judge Ambro’s willingness to be bound by the Fuentes-Greenberg majority’s position on antitrust standing trumps his own conclusion on the standing issue and runs counter to the longstanding and widespread practice of the federal courts of appeals of counting judges’ views as to outcome and not as to individual issues. Although some scholars have criticized this prevailing practice, critics and proponents alike acknowledge its acceptance among the courts….
In my view, this case can be resolved by making simple mathematical calculations that do not require that we use a super computer: (1) one and one make two, and (2) two out of three is a majority.

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.

And if you’ve followed this far, and haven’t had enough of this headache-inducing complexity, consider this: Notice that Judge Fuentes drops a footnote does not expressly address the paradox, he must be implicitly (footnote 1) expressly siding with Ambro in applying the issue-voting rule.  Thus, one might even say that this panel has adopted issue-voting as its voting protocol protocol, by a 2-to-1 majority, with Fuentes and Ambro in the majority, and that this is a precedential holding (at least for the 3rd Circuit)!  Great stuff, this.

[Thanks to the Third Circuit Blog for the pointer]

[UPDATE: Thanks to reader Bill Burgess for pointing out that Judge Fuentes did indeed address the issue-voting vs outcome-voting question in his footnote 1, which I had inadvertently missed on first reading]