The many as one: Integrity and group choice in paradoxical cases

Philosophy and Public Affairs

Volumn 32, Issue 3, 2004, Pages 249-276

  Kornhauser, Lewis A ^a   Sager, Lawrence G ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33644761072     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2004.00014.x     Document Type: Article

References (22)

1. Lewis A. Kornhauser and Lawrence G. Sager, "Unpacking the Court," Yale Law Journal 96 (1986): 82-117
2. Lewis A. Kornhauser, "Modeling Collegial Courts I: Path Dependence," International Review of Law and Economics 12 (1992): 169-85
3. Lewis A. Kornhauser, "Modeling Collegial Courts. II. Legal Doctrine," Journal of Law, Economics and Organization 8 (1992): 441-70
4. Lewis A. Kornhauser and Lawrence G. Sager, "The One and the Many: Adjudication in Collegial Courts," California Law Review 81 (1993): 1-59.
5. Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), esp. ch. 5 and 6.
6. Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997);
7. Pettit, "Democracy, Electoral and Contestatory," Nomos 42 (2000): 105-44
8. Pettit, "Groups with Minds of their Own," Socializing Metaphysics: The Nature of Social Reality, ed. Frederick Schmitt (Lanham, Maryland: Rowman & Littlefield Publishers, Inc., 2003), pp. 167-93.
9. Kornhauser and Sager, "Unpacking the Court."
10. In Law's Empire, Dworkin briefly distinguishes between legislative and adjudicative integrity, and uses legislative examples, such as a compromise "checkerboard ordinance" banning segregation on buses but permitting it in restaurants, to evoke sympathy on behalf of integrity in general (pp. 175-84). But, that work done, the real preoccupation of "law as integrity" is with the work of judges. By and large, legislative integrity enters the picture only briefly and defensively, to explain why it might commonly be sacrificed to other more familiar legislative forces (pp. 217-19), or ascriptively, to justify the interpretive effort of courts to make the best of statutes (pp. 337-38).
11. In Section V, B, below, we observe that Pettit's concern with integrity across a group's members' reasons for resolving a single question before it irresistibly entails a concern with integrity of a group's decision across cases. It is possible that Dworkin's concern with integrity across a group's outcomes over time has a similar entailment regarding integrity across a group's members' basis for their choice in an individual case. We are unaware of any such entailment, however. We mention the possibility of symmetry to signal the rich and largely unexplored territory of integrity as a norm of group behavior.
12. See Kornhauser and Sager, "Unpacking the Court," and Lewis A. Kornhauser, "Preference, Well-Being and Morality in Social Decisions," Journal of Legal Studies 32 (2003): 303-29.
13. The economic approach to the question of intensity of belief is not uniformly accepted or followed. The practice of fact finding in a civil trial, for example, seems to require that someone who believes HOT with a degree of conviction of .55, and disbelieves NEW, again with a degree of conviction of .55, should endorse RAD though the probability calculus requires its rejection. See, for example, R. Lea Brilmayer and Lewis A. Kornhauser, "Review: Quantitative Methods in the Law," University of Chicago Law Review 46 (1978): 116-53
14. L. Jonathan Cohen, The Probable and the Provable (Oxford: Oxford University Press, 1977)
15. Glenn Shafer, The Mathematical Theory of Evidence (Princeton, N.J.: Princeton University Press, 1976). But for our present purposes, we shall assume that the economic approach is a rational guide to individual judgment in our RAD example.
16. We are aware of no widely accepted approach to this question. Christian Genest and James Zidek, "Combining Probability Distributions: A Critique and an Annotated Bibliography," Statistical Science 1 (1986): 114-18 reviews the relevant literature. It is not clear that our intuitive approach conforms to any of the procedures surveyed in Genest and Zidek, though it might be represented by a weighted average approach.
17. Luc Bovens and Wlodek Rabinowicz, "Complex Collective Decisions: An Epistemic Perspective," Associations 7 (2003): 37-50, have shown formally that, on the assumption that each judge has an equal probability of reaching a true conclusion on each issue, neither procedure dominates the other in terms of tracking the truth. It is possible, of course, that a given community in a given context might seek to minimize false positives or false negatives (or some weighted combination of the two) rather than to minimize overall deviation from the truth. In private communication, Wlodek Rabinowicz has shown that conclusion-based voting weakly dominates reason-based voting in minimizing false positives but that reason-based voting weakly dominates conclusion-based voting in minimizing false negatives.
18. For a more elaborate and complete discussion of the structure of doctrine, see Kornhauser, "Modeling Collegial Courts. II. Legal Doctrine," Journal of Law, Economics and Organization 8 (1992): 441-70.
19. With regard to multi-judge courts, it is our view that no blanket rule of any sort is called for; we favor a "meta-vote" to choose between the available aggregation protocols.
20. We offer this example rather than a more recognizable legislature, because that introduces the additional complications of one group deciding for another, which we take up below in Section VI.
21. Legislatures do feel some pressure towards enactment of legislative programs as a whole. The Congressional budgeting procedure, for example, attempts to induce Congress to contemplate the full legislative program that it plans to enact when it makes individual budgeting decisions. The process, however, arose not to generate consistency among reasons but to force some spending discipline on Congress.
22. Under an open rule in which any amendment may be made from the floor, Robert's Rules of Order permit consideration of a bill first on a provision by provision basis and then subsequently as an entirely.