Special majorities rationalized [Working paper]

Abstract

Complaints are common about the arbitrary and conservative bias of special-majority rules. Such complaints, however, apply to asymmetrical versions of those rules alone. Symmetrical special-majority rules remedy that defect, albeit at the cost of often rendering no determinate verdict. Here we explore what is formally at stake, both procedurally and epistemically, in the choice between those two forms of special-majority rule and simple majority rule; and we suggest practical ways of resolving matters left open by symmetrical special-majority rules, such as judicial extrapolation or 'subsidiarity' in a federal system.