Emory Law News Center

3rd Circuit cites Nash on whether judges should vote issues or outcomes
By Emory University School of Law | Emory Law | November 18, 2015

Judges cite in Nash in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc.

Jonathan Nash

How should a panel of judges cast their votes in a case that raises more than one legal issue? Under one view, each judge should vote for the party he or she believes should appeal. The party with the most votes (regardless of each judge's reasoning) wins. Under another view, each judge should cast a vote on each issue; each issue is then decided based on majority vote on that issue, and the winner in the case is based on the resolution of the various issues.  

In a case handed down Nov. 12, 2015—Hanover 3201 Realty, LLC v. Village Supermarkets, Inc.—judges on the U.S. Court of Appeals for the Third Circuit relied on Emory Law Professor Jonathan Nash's work in "deciding how to decide." Nash explored the conundrum in a 2003 Stanford Law Review article, "A Context-Sensitive Voting Protocol Paradigm for Multimember Courts.”  The case involved two issues: whether the plaintiff had standing to pursue a legal claim; and whether certain judicial precedent (the so-called Noerr-Pennington doctrine) precluded plaintiff's antitrust claim. Judge Julio Fuentes opined that the plaintiff had standing and that the Noerr-Pennington doctrine did not preclude plaintiff's claim; accordingly, he believed the plaintiff should prevail. Judge Morton Greenberg agreed with Judge Fuentes that the plaintiff had standing, but believed (unlike Judge Fuentes) that Noerr-Pennington precluded the plaintiff's suit; accordingly, he believed that the defendant should prevail.

Judge Thomas Ambro opined that the standing was lacking, but were standing present believed that Noerr-Pennington did not preclude plaintiff's suit. Were he to have voted on the basis of outcome, he would have voted for the defendant, as the absence of standing would ordinarily produce a vote in the defendant's favor. Together with Judge Greenberg's vote, this would have produced a judgment for the defendant. Instead, Judge Ambro decided to cast votes on an issue-by-issue basis. He recognized that he had lost the vote on standing to Judges Fuentes and Greenberg (who believed the plaintiff had standing), and then cast the deciding vote (with Judge Fuentes) in favor of plaintiff's claim not being barred by the Noerr-Pennington doctrine.  As a result, the plaintiff won the appeal.  

Judge Ambro relied on Nash's article in defending his decision to cast his votes on an issue-by-issue basis (with Judge Fuentes joining Judge Ambro on the point). Dissenting, Judge Greenberg argued that the judges should have stuck with outcome-based voting (which would have produced a judgment in favor of the defendant.) He also pointed to Nash's article for support.