By: Saul Levmore*
Abstract
Judges working in panels of three offer something of the “wisdom of crowds,” and especially so when two judges alone would be divided. And yet, in that case, the tie-breaking judge is no more likely to be “correct” than was the first judge. This Article 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. It leads to the conclusion that most appellate processes should be restructured so that one judge alone reviews a lower court. If the single appellate judge disagrees with and seeks to reverse the lower court, this Article suggests that just one more judge should enter the fray, in part because the lower court judge is also to be valued, so that there is a 2-1 decision at hand. The argument uses some probabilistic thinking and therefore has counterparts in other settings, including jury decisions, where the familiar question of when to seek and pay for a second opinion arises. As the argument proceeds, the value of long-lasting rules and other aims are brought into play.
* I am grateful for the discussions I enjoyed with Dylan Baker, Frank Easterbrook, Dylan Fane, Eliot Levmore, and workshop participants at Stanford, Columbia, and the University of Chicago and the University of Texas Law Schools