Second Opinions and Institutional Design

Abstract

In many settings, decision makers seek second opinions and are wise to do so. Sometimes decision makers do not seek second opinions when they should have or seek them when they should not have. The author's aim is to analyze second opinions as a technique for the design of lawmaking institutions. Part I provides an analytic taxonomy of second-opinion mechanisms and introduces some conceptual distinctions. Part II analyzes the main benefits and costs of second-opinion mechanisms, and then ties the benefits and costs together with some comparative statics, attempting to identify general conditions under which second-opinion mechanisms are desirable or undesirable. Part III applies the analysis to legislative structure and procedure, and to judicial stare decisis. The author claims, among other things, that the Supreme Court should adopt a norm that two successive decisions, not merely one, are necessary to create binding law.