On Legal Interpretations of the Condorcet Jury Theorem

Abstract

There has been a spate of interest in the application of the Condorcet Jury Theorem to issues in the law. This theorem holds that a majority vote among a suitably large body of voters, all of whom are more likely than not to vote correctly, will almost surely result in the correct outcome. Its uses have ranged from estimating the correct size of juries to justifying the voting of creditors in Chapter 11 reorganizations. While the mathematics is unassailable, the legal interpretation of the conclusion is dependent on the model of probability one uses when invoking the assumption that the voters are "more likely than not to vote correctly." In this paper, I show how different probabilistic models lead to different interpretations of the results. Establishing which is the appropriate model has normative implications as well. This analysis is then employed in critiquing the work of Saul Levmore and of Lewis Kornhauser and Lawrence Sager.