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Public Law & Legal Theory


Appellate review can be understood as an opportunity to correct errors made by lower courts and, by virtue of their multi-member panels, as a way to benefit from the wisdom of crowds. Appellate panels of three judges, and then a larger Supreme Court of nine, are likely to interpret, apply, or advance law more correctly, or simply better, than a single lower-court judge whose effort is under review.1 Appellate review can also be understood as relying on more experienced or otherwise superior decision-makers or as designed to make law more uniform, inasmuch as lower court decisions on many matters will converge as they follow precedents. It has also been understood as a way to take advantage of the knowledge that litigants themselves have about lower court errors.2 Appellate review is surely a means of encouraging more careful work by lower courts; people are often more careful when they know that their work can be reviewed or observed by superiors or well-regarded peers. Finally, appellate review may be of great value (even) when it affirms a lower court, because each step adds to the development of a lasting precedent. Most of these perspectives have counterparts in other settings where the familiar question of when to seek and pay for a second opinion arises. But most second opinions, whether sought before agreeing to a medical procedure or contracting for an auto repair, are given by a single analyst, while appellate review in the federal and most state systems normally involves three jurists, and then yet more in the event of a further appeal.3 This Essay examines the logic of second and third opinions – even without the added complexity introduced by the precise cost of review (in the form of time or money) – and reaches several counterintuitive results. Most appellate processes should be restructured so that one judge alone reviews the lower court. Only if this single appellate judge disagrees with the lower court, should one more judge enter the fray, and even that may be wasteful. Legal questions that are appealed will normally be decided by 2-0 or 2-1 decisions, involving just one or two appellate judges in addition to the lower court judge.

There are other reasonable conclusions to reach once the logic of appellate review, and second opinions quite generally, is examined. There is a case to be made for having the first appellate judge always decide whether further review is in order. On the other hand, and to the contrary, the appellate process could always stop after one review – subject to the Supreme Court’s deciding to take the case. These and other possibilities are examined here, but mostly set aside in favor of the central argument about the appellate process. The arguments that drive the conclusions are fueled by some probability theory, and have surprising implications for areas outside of law in which second opinions are commonly sought. I begin with the idea that reaching the correct decision (defined presently) is the immediate goal. As the argument proceeds, the value of long-lasting rules and other aims are brought into play.

Part I begins with the most familiar use of second opinions. It rethinks the wisdom of soliciting another assessment before following a recommendation regarding a serious medical intervention. There are important differences between medical and legal decisions, but it is instructive to begin with an example where it is easier to insist that there is a correct answer. The analysis shows that the common thinking about the value of a second medical opinion is poorly conceived. The goal in Part I is not to give medical advice, though there is some of that, but to rethink the logic of second opinions, before applying it to judicial review. Part II then takes account of some of the ways in which judicial review is unlike other calls for review. It suggests that if we incorporate the likelihood that a lower court judge is correct, it is sensible to move to a system where we begin, and usually end, with a single appellate judge. Part III tests the idea of a single reviewer by looking not only at the value of discussion and teamwork among judges, but also at the importance of some assumptions made here about the probability that a judge is correct. Part IV turns to the possibility that appellate judges are not deployed to find correct answers, perhaps because there is often no such thing, but rather to reflect and aggregate preferences, a distinction familiar to students of public choice, not to mention to observers who regard much of what judges do as reflecting political preferences. Part V extends the analysis of appellate review to committees and boards of directors, and then to juries. The insights offered here suggest some changes in law, though some of these are likely to be politically impossible in the near future.



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