The Rank-Order Method for Appellate Subset Selection

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Notre Dame Law Review Online


Appellate courts in many countries will often use a subset of the entire appellate body to decide cases. The United States courts of appeals, the European Court of Justice, and the highest courts in Canada, Israel, South Africa, New Zealand, and the United Kingdom all use subsets. In general, there have been two methods that appellate courts have used to choose their subsets: direct selection and random assignment. In direct selection, the chief judge or a designated court administrator simply selects the members and size of the panel for that particular case. In random assignment, the size of the panel is preset and the composition of the panel is randomly assigned from the full set of judges. Both of these subset selection methods likewise involve a trade-off. Direct selection allows for panels that reflect the views of the entire set of judges, but also permits the “gaming” of the outcome in particular cases. Random assignment prevents such purposeful gaming, but allows for non-representative outlier panels to form as a matter of simple probability. This Essay introduces a new method for selecting subsets that combines the best elements of both the direct selection method and random assignment, while avoiding their pitfalls. This new method — which I call the rank-order method — creates subsets that are judicially efficient and representative of the appellate body as a whole. Importantly, the rank-order method also mitigates against possible “judicial gaming.”

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