For a better experience, click the Compatibility Mode icon above to turn off Compatibility Mode, which is only for viewing older websites.

Third Circuit Cites Professor David S. Cohen’s Scholarship

David S. Cohen with students

November 25, 2015

In a ruling that involves a legal battle between a grocery retailer and a rival chain’s developer, the U.S. Court of Appeals for the Third Circuit cited an article by Professor David S. Cohen that appeared in the Boston University Law Review.

The court split its opinions, 2-to-1, with different majorities on the three-judge panel emerging on separate matters in the case, Hanover 3201 Realty LLC v. Village Supermarkets.  One pair of judges agreed that Hanover, a developer seeking to build a Wegman’s grocery store in Hanover, N.J. has the standing to make an antitrust claim based on the competitor’s efforts to block the project.  However, a different majority among the trio concluded for other reasons that the developer’s suit should survive the defendant’s motion to dismiss the case while yet another pair concluded for still other reasons that the case should not proceed.   

In ruling as it did, the court created the precise kind of legal dilemma that Cohen explored in his 2010 article, “The Precedent-Based Voting Paradox.”

The unresolvable dilemma arises when the final outcome of a case is resolved in a way contrary to the component issues, Cohen explained in the article, which explored precedent-based paradoxes that arise when only one issue appears to be before the court.

The article was cited four different times and by two different judges in the court's opinion, which was filed on Nov. 12.