Rowing Against the Tidewater: A Theory of Voting by Multi-Judge Panels

33 Pages Posted: 9 Nov 2006 Last revised: 17 Nov 2015

See all articles by David G. Post

David G. Post


Steven C. Salop

Georgetown University Law Center


How should the views of individual judges on an appellate panel be combined to reach a decision in any particular case. Oddly enough, there has been comparatively little attention paid to this very fundamental question, notwithstanding the fact that there are (at least) two very different procedures judges could use, and that the choice between them may be outcome-determinative in many circumstances. In this paper, we set out an analytic framework for examining the question of which voting rule multi-member courts should use, with reference to the well-known case of National Mutual Insurance Co. v. Tidewater Transfer Co., 337 US 532 (1948), and demonstrate a number of fundamental flaws in the methods of outcome-voting used by most multi-member panels.

Keywords: Condorcet Paradox, judicial voting, multi-member courts

JEL Classification: K41, K10

Suggested Citation

Post, David G. and Salop, Steven C., Rowing Against the Tidewater: A Theory of Voting by Multi-Judge Panels. Georgetown Law Journal, Vol. 80, p. 743, February 1992. Available at SSRN:

David G. Post (Contact Author)

Independent ( email )

No Address Available

Steven C. Salop

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9095 (Phone)
202-662-9497 (Fax)

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