Gregory Antill (Columbia University – Law School) has posted Judicial Disagreement and the Role of Higher-Order Evidence in Judicial Reasoning (93 University of Chicago Law Review 2026) on SSRN. Here is the abstract:
This paper considers the question of when, if ever, a judge on a multi-member tribunal should take into account or defer to the judgments of their colleagues when deciding a case. It has been common wisdom until recently that, rather than defer to the opinion of their colleagues, it is a judge's duty to "consider a case by his or her own lights," weighing the relative merits of a case and then coming to a decision directly on the basis of those merits. Over the past decade, however, this familiar view has come under sustained critique by Eric Posner, Adrian Vermeule, William Baude, Ryan Doerfler, and others. These scholars instead argue for the thesis that judges on multi-member tribunals have an obligation to defer to the opinions of their colleagues when deciding a case rather than deciding by their own lights directly on the merits.
The paper harnesses an important distinction in social epistemology between "first-order" evidence and "higher-order" evidence to push back against these recent scholarly arguments for radical judicial deference, in favor of the traditional account. The paper argues (a) that a strong epistemic case can be made that, in contexts like that of a judicial tribunal, where justices have access to the underlying first-order reasoning behind the judgements of those who disagree with them, it is rationally appropriate to ignore higher-order evidence consisting in the fact of disagreement and (b) that even if higher order evidence did provide epistemic reasons to defer, judges would still have distinctively legal obligations to ignore such higher-order evidence when deciding a case, grounded in the difference between the nature of legal reasons and epistemic reasons.
Such theoretical debates about the precise scope of proper judicial deference are increasingly less academic, given the uptick in high-profile disagreements among fellow textualists on the bench,
as in the recent landmark case of Bostock v. Clayton County, Georgia. Contra Baude & Doerfler, one important upshot of this paper is that insofar as it is ever appropriate for a judge to take judicial disagreement into account, it is in their choice of initial interpretative methodology, rather than in the methodology's application to a particular case. This provides at least some pressure judges to reason as methodological pluralists, regardless of what they personally think about the first-order merits of any interpretative schema.
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