Disagreements on Collegial Courts: A Case-Space Approach

Abstract

How do disagreements between judges on collegial (multimember) courts affect legal policy?We address this question by developing an account of the nature of judicial disagreements in the case-space model of judicial choice.We distinguish between different types of disagreement, from disagreements about case facts to disagreements about how legal rules should treat varying case facts, and consider some of the key features of collegial decision making under the circumstances characterized by these different types of disagreements.We argue that attempts to develop collegial legal policy against the background of such disagreements pose distinct challenges with respect to policy interpretation and implementation.These challenges must be confronted by a legal theory and jurisprudence that envision a place for collegial courts.

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