Penn State Law Review
The wisdom of crowds correctly exalts majority decision-making on appellate courts as well as on many other settings, including hospitals and committees with multiple doctors or board members. But the same confidence in majorities should be applied to the reasons that are attached to a vote, or opinion, and then to a majority’s rejection of a member’s reasoning. This Article introduces the problems confronted when examining the reasons for opinions, and then the reasons beneath those reasons. It shows that majority decision-making is not as reliable as it first seems and, indeed, that a single decision-maker may at times be more reliable than a 2-1 or even a supermajority vote. One lesson or escape from this paradox is that judges and other decision-makers should reveal their disagreements, if any exist, with other voters’ reasoning, to reveal whether there is such serious disagreement about their reasoning as to question the presence of a true majority.
Saul Levmore, "Fractured Majorities and Their Reasons ," 127 Penn State Law Review 331 (2022).