The Condorcet Jury Theorem and Judicial Decisionmaking: A Reply to Saul Levmore

Abstract

In Ruling Majorities and Reasoning Pluralities, Professor Saul Levmore explores the “division of labor” between the various thresholds of agreement required for collective action—supermajority, simple majority, or plurality rule. His particular emphasis is on the choice between the last two options. To improve our understanding of this choice in various settings, Professor Levmore considers the relationship between two well-known contributions to the study of group decisionmaking, namely, the Condorcet Jury Theorem and the Condorcet Criterion, which have not generally been treated together. This essay explores the relationship between these two insights in the context of judicial decisionmaking. Counterintuitively, the essay demonstrates that while the Condorcet Criterion continues to hold great promise as a tool of decision in en banc appellate courts, the Condorcet Jury Theorem is most appealing in judicial contexts that appear less collegial and thus less like a jury. In contexts in which jurists engage in deliberation and in which they anticipate that their outputs will have precedential effect, the Jury Theorem has little if any role to play. In contrast, the Theorem might prove more useful in evaluating low-level judicial outputs or decisions that otherwise are not expected to be treated as precedent. Thus, common law trial court decisions and civil law court decisions are more likely to be useful benchmarks in a Condorcet Jury Theorem analysis. It is because such courts do not anticipate that their decisions will have the force of precedent that they are more likely to be derived from governing legal texts, and thus more prone to characterizations of accuracy, than are judicial outputs that are driven by policy concerns and are generated with the understanding that they will be treated as precedent.