A Context-Sensitive Voting Protocol Paradigm for Multimember Courts

In some cases, appellate court panels will reach different conclusions depending upon whether they resolve the cases with a single vote - that is, using outcome-based voting - or by voting upon each issue separately - that is, using issue-based voting. Commentators lament the fact that courts and judges have no set rules governing the proper voting protocol to use in these cases of doctrinal paradox. Some commentators advocate uniform voting protocols in favor of outcome-based voting or, alternatively, issue-based voting; others suggest that courts faced with doctrinal paradoxes decide which protocol to use on a case-by-case basis by casting a separate vote - a metavote - on the choice of protocol. This Article argues that the existing proposals by commentators are insufficient. Uniform voting protocol proposals fail to take into account the shortcomings inherent in outcome-based and issue-based voting that may be of heightened concern in particular circumstances. The metavote proposal properly eschews an absolute choice of protocol, but suffers from numerous drawbacks, including that the metavote itself is susceptible to voting paradoxes. Instead, this Article advocates a voting protocol paradigm under which the choice of voting protocol turns on the nature of the questions faced by the court. Issues of pure law should be determined using outcome-based voting; applications of law to fact should be determined using issue-based voting. The Article also proposes certain procedural reforms that could be supplemental to, but also could be adopted independent of, the substantive voting protocol proposal