In the federal judicial system, multiple judges hear cases on appeal. Although assigning cases to multiple judges provides a number of benefits, it also generates the potential for conflict. Because each judge has his own set of preferences and values, judges on appellate panels often disagree with each other. Judges currently resolve these disagreements by filing separate opinions or drafting compromise opinions. A different way to resolve these disagreements is to allow vote trading across cases. Scholars and judges have condemned this practice, however, and judges have insisted that it does not occur.
This Article argues that the blanket condemnation of vote trading is unwarranted. It explains that there is more than one form of potential vote trading. Judges might trade votes to form majority support for the disposition of cases, or they might trade votes to form majority support for rationales in opinions. They may also trade votes to form supermajority coalitions for decisions that a majority of judges already support. Each form of vote trading presents different sets of benefits and objections. In some situations, vote trading may improve the quality of decisions, result in better guidance for future cases, or enhance the prestige of the courts. In other situations, vote trading may undermine judicial legitimacy and violate basic principles like due process. This Article analyzes these benefits and objections, and it concludes that vote trading should be allowed, if not encouraged, in some situations.
F. Andrew Hessick and Jathan P. McLaughlin,
65 Fla. L. Rev.
Available at: https://scholarship.law.ufl.edu/flr/vol65/iss2/3