Justice As Fair Division

13 Pages Posted: 8 Apr 2017 Last revised: 19 Jun 2017

See all articles by Ian C. Bartrum

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Kathryn Nyman

Willamette University - College of Liberal Arts

Peter Otto

Willlamette University

Date Written: April 20, 2017

Abstract

We start from the assumption that any realistic reform proposal must not require a constitutional amendment. We then suggest that hyperpoliticization arises out of a feedback loop between appointments and decision-making: Politicized decisions beget politicized appointments, and vice-vernal. We thus propose a change to the Court's decision-making process, which we believe will incentivize useful changes in the appointments process. Our proposal involves an application of what mathematicians and game-theorists call "fair division theory."

To begin, we suggest a new decision-making process in which a three-Justice panel--not the entire Court--would hear and decide each case. Appeal to an en banc sitting owed be available only upon the unanimous vote of the remaining six Justices. The parties themselves would engage in a fair division process to select the decisive panel: (1) Petitioner partitions 3 possible panels, using each Justice once; (2) Respondent eliminates 1 panel, then repartitions the remaining Justices into two new panels; (3) Petitioner chooses one panel.

We offer a mathematical proof that this will result in a panel close to the parties perception of the Court's ideological center relative to their case. We offer reasons to think that this would (1) produce less politicized opinions and more stable doctrine; and (2) discourage outlier appointments, as such Justices would serve on fewer decisive panels. Over time this would lead to a more moderate, centrist Court.

Keywords: Fair Division, Supreme Court, Constitutional Theory, Legal Theory, Court Reform, Politicization

Suggested Citation

Bartrum, Ian C. and Nyman, Kathryn and Otto, Peter, Justice As Fair Division (April 20, 2017). Pepperdine Law Review, Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2947342 or http://dx.doi.org/10.2139/ssrn.2947342

Ian C. Bartrum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/ian-bartrum

Kathryn Nyman

Willamette University - College of Liberal Arts ( email )

Salem, OR
United States

Peter Otto

Willlamette University ( email )

Salem, OR
United States

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