The “Voting Paradox”: Perverse and Fascinating

Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015).  The number of different issues that judicial opinions present never ceases to amaze.  This appeal, which involved questions of antitrust standing and Noerr-Pennington immunity, presented what is known as the “voting paradox.”  Judges Fuentes, Ambro, and Greenberg were so divided on the issues that, depending on which issues were addressed in what order, the result would be entirely different, with plaintiff winning under one scenario (the path that the panel ultimately took) and defendant prevailing under the other scenario.  The judges could not even achieve unanimity as to how to unravel that paradox, which results from the difference between “issue voting” and “outcome voting.”

The preceding paragraph is as clear as mud and does not begin to explain the fascinating wrinkles that the case contains.  The three judges explained the problem, and its perversity, quite clearly in their three separate opinions, which totaled 94 pages.  Matthew Stiegler offers a concise summary on his Ca3blog, which likely cannot be improved upon.  Read that, and then fight through the opinions themselves, particularly that of Judge Ambro, which delves most deeply into the voting paradox.  It is well worth the effort.

Judge Ambro’s opinion demonstrated another remarkable thing:  as wacky as this paradox is, this is not the first time it has occurred.  Law review articles have been written about it, as Judge Ambro showed.  You should find this “appeals-nerdtastic” (Matthew Stiegler’s coinage) even if you are not an appeals nerd.