The Doctrinal Paradox & International Law

Abstract

In the second half of the twentieth century, the number of international courts and tribunals available to help settle transnational disputes exploded. During the same period, there was also a proliferation of research in social choice theory that illustrates a range of ways that the aggregation of preferences and judgments can create inconsistent results. This research has become an increasingly important tool for legal scholars who seek to understand the strategic constraints that shape judicial decision-making. One important insight gained from this scholarship is the existence of the “doctrinal paradox.” The doctrinal paradox shows that under certain conditions, the decision-making processes of multi-member courts can be indeterminate because the outcomes of cases change based on the way that the judges choose to aggregate their judgments. In other words, the same distribution of opinions among a panel of judges may result in either party A or party B winning a particular case, depending on the method that the judges use to reach a final decision. The doctrinal paradox thus not only creates outcomes that may appear logically incoherent, but since it results in decisions that are at tension with the precedent they create, it also threatens the integrity of the development of law more broadly.

This Article is the first to explore the important implications that the doctrinal paradox has for international adjudication. To do so, we have undertaken one of the first efforts to compile comparative data on the decision-making procedures and dissent rates of international courts. By coupling this information with insights from international relations and international law, we argue that there are unique features of international courts and tribunals that affect the causes and consequences of the doctrinal paradox. Specifically, since international courts are uniquely vulnerable to having their decisions ignored by litigants but still provide an essential avenue for the development of the corpus of international law, the impact of paradoxical decisions can be magnified. We also discuss examples where the doctrinal paradox can arise and has arisen during the course of international adjudication. Finally, we argue that the designers of international legal institutions should explicitly consider the tradeoffs associated with maintaining flexible policies versus adopting a fixed judgment aggregation mechanism.