Sequential Voting in Collegial Courts: An Experimental Design

Michigan State University, East Lansing MI

Investigators

Abstract

Sequential voting among collegial courts during deliberations is a phenomenon that is fairly consistent among different types of court systems. However, the method of sequential voting varies widely from court to court. The U.S. Supreme Court uses a seniority sequential voting system during the certiorari vote and the original votes of merits, in which the most senior justice votes first, and so on to the least senior member. U. S. state courts use a multitude of sequential voting mechanisms which range from the seniority system described above, to a reverse seniority system (in which the least tenured justice votes first and so on to the most tenured justice voting last), to a rotation or random seniority system (in which the order of voting is determined randomly). Sequential voting processes affect the level of uncertainty judges confront when they cast their vote on a case. The amount of uncertainty that judges confront when they cast their vote is relevant because this influences a judge's ability to vote strategically. Specifically, it may influence a judge's decision to join the majority coalition. Being in the majority has two benefits for judges: an individual-level benefit and a collective benefit. Individually, in certain judicial systems, a judge who is in the majority has he opportunity to draft the initial opinion where bargaining occurs. Collectively, the formation of supermajorities is attractive since the legitimacy of the court's judgment is heightened when there is consensus about a legal issue. To test the effect of voting sequence, the researchers propose a series of laboratory experiments. Laboratory experiments also allow control for relevant parameters, such as the type of voting system, risk aversion of the judges, size of the court, the level of uncertainty, and the saliency of the issue under consideration. This research will provide evidence about which judge is more likely to vote strategically given his or her position in the voting queue, and the rate of strategic voting that should occur in each of the court systems. The experiments should also provide some useful results about the social welfare properties of each system.