On law's tiebreakers

University of Chicago Law Review

Volumn 77, Issue 4, 2010, Pages 1661-1737

  Samaha, Adam M ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 79955718517     PISSN: 00419494     EISSN: None     Source Type: Journal    
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References (376)

1. Abraham Lincoln, Fragment: Notes for a Law Lecture (1850), in Roy P. Basler, ed, The Collected Works of Abraham Lincoln: Supplement 1832-1865 18, 19 (Rutgers 1974).
2. Fleming James, Jr, Burdens of Proof, 47 Va L Rev 51, 51 (1961).
3. Lawrence M. Friedman, Law in America: A Short History 42 (Modern Library 2002).
4. Henry M. Robert, III, et al, Robert's Rules of Order Newly Revised 392 (Perseus 10th ed 2000) ("On a tie vote, a motion requiring a majority vote for adoption is lost, since a tie is not a majority.").
5. See note 13.
6. See text accompanying notes 30-32.
7. See text accompanying notes 201-08.
8. US Const Art I, § 3, cl 4 (stating that the vice president "shall have no Vote, unless they be equally divided"). Ordinarily, Senate approval of a bill requires majority support from a quorum of voting senators.
9. Walter J. Oleszek, Super-Majority Votes in the Senate 1 (CRS 2008), online at http://www.fas.org/sgp/crs/misc/98-779.pdf (visited Apr 8, 2010) (relying on Senate precedent). This rule produces a decisive outcome for numerically tied votes without resort to a special tiebreaker.
10. David R. Tarr and Ann O'Connor, eds, Congress A to Z 472 (CQ 4th ed 2003). But Article I, § 3, clause 4 is nonetheless a "tiebreaker" in the strict sense. See Part I.A.
11. A large literature in decision theory confronts uncertainty and other forms of indeterminacy. See José Luis Bermúdez, Decision Theory and Rationality 22-27 (Oxford 2009) (describing basic elements of expected-utility-maximizing decision theory for such situations);
12. Simon French, Decision Theory: An Introduction to the Mathematics of Rationality ch 2 (Halsted 1986) (similar);
13. David Kelsey and John Quiggin, Theories of Choice under Ignorance and Uncertainty, 6 J Econ Surv 133, 133-42 (1992) (collecting rational choice models).
14. Jon Elster, Solomonic Judgements: Studies in the Limitations of Rationality 8-17, 107-08 (Cambridge 1989) (suggesting lotteries when reason runs out);
15. R. Duncan Luce and Howard Raiffa, Games and Decisions: Introduction and Critical Surveys 278-86 (Wiley & Sons 1957) (discussing maximin utility, minimax regret, Hurwicz's best-worst state ratio, and the principle of insufficient reason for dealing with uncertain probabilities across known outcomes).
16. Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation ch 6 (Harvard 2006) (applying many of these strategies to issues of judicial interpretation). My investigation overlaps these ideas.
17. For some narrower treatments in the law literature on related topics, see Michael P. Healy, Communis Opinio and the Methods of Statutory Interpretation: Interpreting Law or Changing Law, 43 Wm & Mary L Rev 539, 571-74 (2001) (distinguishing certain canons of construction that operate as tiebreakers);
18. Alan Schwartz, Proposals for Products Liability Reform: A Theoretical Synthesis, 97 Yale L J 353, 382-84 (1988) (discussing compensation and consumer autonomy tiebreakers that judges might use to fashion products liability law);
19. James, 47 Va L Rev at 51-52 (cited in note 2) (discussing preponderance of the evidence).
20. Edward A. Hartnett, Ties in the Supreme Court of the United States, 44 Wm & Mary L Rev 643 (2002) (defending the rule that judgments are affirmed whenever the justices are evenly divided);
21. David Kaye, The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation, 1982 Am Bar Found Rsrch J 487 (1982) (discussing the costs and benefits of various proof burdens, including for situations of equally persuasive evidence in two-party cases);
22. Michael Coenen, Comment, Original Jurisdiction Deadlocks, 118 Yale L J 1003 (2009) (assessing options for breaking ties when there is no lower court judgment to affirm).
23. James, 47 Va L Rev at 51 (cited in note 2). James identified the burden of persuasion as a device for resolving all cases of doubt or equipoise on questions of fact in litigation. See id at 51-52. His point is important. Adjustments to the proof burden, however, are "tiebreakers" only in a loose sense of the word. See Part I.A. My goal is to explore the larger option set for both preventing and breaking ties.
24. Fédération Internationale de Football Association, Laws of the Game 50-52 (2009), online at http://www.fifa.com/mm/document/affederation/ federation/81/42/36/lawsofthegameen.pdf (visited Apr 24, 2010) (describing three approved tiebreaking methods: alternating kicks from the penalty mark, doubling the value of away goals, and extra time).
25. Ariz Rev Stat Ann § 16-649(A) (West); Fla Stat Ann § 105.051(1)(c) (West); Mich Comp Laws § 168.851-52; Minn Stat Ann § 204C.34 (West); NM Stat Ann § 1-13-11; Va Code § 24.2-674; Wis Stat § 5.01(4)(a); Randal C. Archibold, Election at a Draw, Arizona Town Cuts a Deck, NY Times A1 (June 17, 2009).
26. Finland Election Act pt I, ch 7, §§ 89-90 (1998) (regarding the ordering by party of candidates for parliament). In Arizona, a tied recall election goes to the incumbent, see Ariz Rev Stat Ann § 16-649(A)-(E), which is consistent with a kind of status quo bias present in several of law's tiebreakers. But I know of no statutes that give the tie to an incumbent in a contested candidate election.
27. Christian Celind, Penalty Shootouts-There Is an Alternative (May 25, 2008), online at http://www.soccernews.com/penalty-shootouts (visited Apr 24, 2010) ("Despite its appeal for drama and excitement, ⋯ a penalty shootout is merely a series of random shots in the dark."). In the 1970s, coins actually were flipped to decide some soccer matches. See id.
28. See Merriam-Webster's Collegiate Dictionary 1233 (Merriam-Webster 10th ed 1999) (defining "tie" as, among other things, "an equality in number (as of votes or scores)"). I have added the phrase "relevant to an observer" to flag the fact that a tie depends on the metric that matters and that different metrics matter to different observers. Furthermore, even if all observers agree on the relevant metric, different observers might come up with different measurements. Thus competing parties (debaters, say, or litigants) might agree on the relevant issue and disagree on which argument is better. A third party might begin by-or even end up-thinking that the arguments of the first two parties are evenly matched. For this third party, there is a tie. And even from the perspective of the first two parties, there is a tie to the extent they experience an impasse and feel the need to resolve it somehow. Whether one or the other is correct in an objective sense is another matter and does not affect the social reality of impasse.
29. See Kelsey and Quiggin, 6 J Econ Surv at 133-42 (cited in note 9) (distinguishing decision under (1) risk, where the probabilities for a set of consequences in a set of states are objectively known for each proposed action, (2) uncertainty, where probabilities are not objectively known, and (3) ignorance and deeper forms of uncertainty, where not even the set of states is known or where the states-consequences structure is not known); Elster, Solomonic Judgements at 8-17 (cited in note 9) (itemizing ways in which rational choice theory may fail to recommend a unique result);
30. Frank H. Knight, Risk, Uncertainty and Profit 20, 231-34 (Houghton Mifflin 1921) (distinguishing mere risk from uncertainty). For a brief and nontechnical discussion of uncertainty and uncertainty aversion
31. Eric L. Talley, On Uncertainty, Ambiguity, and Contractual Conditions, 34 Del J Corp L 755, 763-69 (2009). Common definitions of incommensurability exclude cases in which the observer can say that two choices are equally valuable
32. Joseph Raz, The Morality of Freedom 322 (Oxford 1986) ("A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value."), so I am using the term "equality" very loosely so as to include incommensurability. Work on actual human behavior under conditions of "uncertainty" seems focused on decisionmaking under known or estimated risks, especially stated risks.
33. Ralph Hertwig, The Psychology and Rationality of Decisions from Experience (unpublished manuscript, 2009), online at http://psycho.unibas.ch/en/ datensaetze/departments/cognitive-and-decision-sciences/recent-publications/ abteilung/cognitive-and-decision-sciences/(making this observation and investigating how people react to their experience with risk in contrast to their reactions to described probabilities);
34. Daniel Kahneman and Amos Tversky, Variants of Uncertainty, in Daniel Kahneman, Paul Slovic, and Amos Tversky, eds, Judgment under Uncertainty: Heuristics and Biases 509, 515-20 (Cambridge 1982) (discussing uncertainty in terms of probabilities and confidence levels).
35. Metropolitan Life Insurance v Glenn, 128 S Ct 2343, 2351 (2008) (recognizing that "any one factor will act as a tiebreaker when the other factors are closely balanced"); Matt Weiser, California Panel Adds New Marine Sanctuary Zone, Sacramento Bee 3A (Aug 6, 2009) (identifying the new commissioner as the tiebreaker in a 3-2 vote);
36. Karen DeMasters, Districting Tiebreaker, NY Times NJ5 (July 22, 2001) (describing the nonpartisan appointee to a commission as the tiebreaker).
37. Another way to make the point is to say that, theoretically, every decision rule can be disaggregated into its applications. See Richard H. Fallon, Jr, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv L Rev 1321, 1334 (2000) ("[S]tatutes often are best understood as encompassing a number of subrules, which frequently are specified only in the process of statutory application."). Some of these applications will happen to break ties beyond the mere resolution of uncertainty before application, but this does not mean that the decision rule was designed to confront the issue of such ties.
38. Robert D. Cooter, The Strategic Constitution 61-62, 111-14 (Princeton 2000) (observing that unanimity rules prevent coercive redistributive contests while increasing transaction costs for reaching agreement on even socially beneficial cooperation schemes).
39. Lexical (or lexicographical) ordering categorically prioritizes one factor or set of factors over others. Alphabetizing is the paradigmatic form of lexical ordering: ordering indicated by an earlier letter in a word always trumps anything suggested by a later letter. See John Rawls, A Theory of Justice 37-38 (Belknap rev ed 1999).
40. "Do overs," including new trials, are excluded from my definition of a tiebreaker.
41. See United States v Carroll Towing Co, 159 F2d 169, 173 (2d Cir 1947) ("[L]iability depends upon whether B is less than L multiplied by P.").
42. Mathews v Eldridge, 424 US 319, 334-35 (1976).
43. See Coffin v United States, 156 US 432, 460 (1895) (treating the presumption of innocence as a piece of evidence in favor of the accused).
44. Richard D. Friedman, A Presumption of Innocence, Not of Even Odds, 52 Stan L Rev 873, 879-83 (2000) (translating the presumption of innocence into Bayesian terms as a requirement that jurors begin with an assessment that the prior odds of guilt are very low).
45. Wiener v Southcoast Childcare Centers, 88 P3d 517, 519 (Cal 2004) (stating that plaintiffs must show duty, breach, and proximate cause to recover for negligence). For a similar reason, one house of a bicameral legislature is not a tiebreaker for legislation approved by the other house.
46. Ashwander v Tennessee Valley Authority, 297 US 288, 347 (1936) (Brandeis concurring) (asserting that the Court's practice was consistent with this norm). This norm might also effectively skew the first-order decision rule, as when statutes are interpreted to avoid the risk of a constitutional problem if reasonably possible. Such skewing is akin to increasing the vote requirement for approval of legislation; it does not entail a tiebreaking decision structure.
47. I am assuming the same quorum rule for both alternatives and that the denominator for the majority-vote rule is the number of people actually voting.
48. Robert, et al, Robert's Rules at 392 (cited in note 4). The same observation can be made for baseball. It is sometimes said that a "tie goes to the runner" at first base, but the applicable rule states that a batter is out if "he or first base is tagged before he touches first base." Official Baseball Rules 6.05(j) (2008), online at http://mlb.mlb.com/mlb/ downloads/y2008/official-rules/06-the-batter.pdf (visited Apr 24, 2010) (emphasis added). Even if ties at first base are possible, this rule purports to offer a decisive resolution without a separate tiebreaker.
49. Requiring the plaintiff to prove his case to an absolute certainty, however, does seem to mimic the comparable tiebreaking decision structure-that is, plaintiff must be certainly correct, which will never or rarely occur, plus plaintiff loses if the decisionmaker is uncertain whether plaintiff is certainly correct. The results should be the same in all cases.
50. Ill Ann Stat ch 625, § 5/11-901(a) (Smith Hurd).
51. Rupp v Keebler, 175 Ill App 619, 620 (1912) (stating the first-to-enter rule).
52. Lauman v Vandalia Bus Lines, Inc, 681 NE2d 1055, 1063-64 (Ill App 1997) (indicating that stopsign intersections may be governed by both rules).
53. Edward C. Fisher and Robert H. Reeder, Vehicle Traffic Law 154-55 (Traffic Institute, Northwestern 1974) (placing the yield-right rule into a category of right-of-way rules that deal with collision risks).
54. Erwin Chemerinsky, Constitutional Law: Principles and Policies 671-74 (Aspen 3d ed 2006) (summarizing the tiers of scrutiny in which different state classifications trigger different burdens for defending them).
55. Richard H. Fallon, Jr and Daniel J. Meltzer, New Law, Nonretroactivity, and Constitutional Remedies, 104 Harv L Rev 1731, 1758-64 (1991) (discussing when a judicial decision might qualify as new law rather than another part of the old);
56. Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 Yale L J 1311, 1313-18 (2002) (discussing potentially determinative framing issues in constitutional adjudication);
57. Daniel Lowenstein, Initiatives and the New Single Subject Rule, 1 Election L J 35, 46-48 (2002) (contending that a unitary subject is a contestable matter of convenience and social context).
58. Detlof von Winterfeldt and Ward Edwards, Defining a Decision Analytic Structure, in Ward Edwards, Ralph F. Miles, Jr, and Detlof von Winterfeldt, eds, Advances in Decision Analysis: From Foundations to Applications 81, 94-96, 102 (Cambridge 2007) (explaining that "a decision tree is not meant to be a complete and exhaustive representation of all future decisions and events").
59. Anderson v City of Minneapolis, 363 NW2d 886, 887 (Minn App 1985).
60. See id at 887, 890 (upholding the scheme).
61. Mayo Foundation for Medical Education and Research, Tuberculosis: Tests and Diagnosis (Jan 28, 2009), online at http://www.mayoclinic.com/health/ tuberculosis/ds00372/dsection=tests-and-diagnosis (visited Apr 24, 2010) (discussing skin tests, blood tests, chest x-rays, gene tests, and so forth).
62. See FRCP 12(b)(6), 12(c), 56 (authorizing dispositive pretrial motions). See also 28 USC § 1914 (imposing filing fees for federal civil actions); Adam M. Samaha, Litigant Sensitivity in First Amendment Law, 98 Nw U L Rev 1291, 1324, 1333-34 (2004) (describing doctrine that filters out some claims and triggers further evaluation for others).
63. Frank H. Easterbrook, Substance and Due Process, 1982 S Ct Rev 85, 112-13 ("Procedural rules usually are just a measure of how much the substantive entitlements are worth, of what we are willing to sacrifice to see a given goal attained.");
64. Mark Tushnet, The Newer Property, 1975 S Ct Rev 261, 267-73 (indicating a similar reaction from a different normative perspective).
65. The overloaded system category could be excluded from the definition of a tiebreaker by requiring that the lexically superior decision rule have some probability of resolving the decision problem on its own. Aside from specification difficulties, this exclusion would mean that the existence of a tiebreaker would depend on the composition of cases facing the decisionmaker at any particular moment. Although it is not possible to ignore entirely the composition of cases in evaluating the propriety of tiebreakers, I want to avoid complicating the definition of a tiebreaker with this consideration.
66. One might think that a tiebreaking decision structure can be justified by the desirability of decision-cost sequencing alone. As discussed above, it can be sensible to postpone the evaluation of costly or controversial variables until they become necessary to reach a sound decision. See text accompanying note 26. But decision-cost sequencing is often accomplished without creating a tiebreaker in the strict sense. The costly or controversial variable would have to be segregated from the other variables and considered only when those variables are inconclusive- and not when those variables lean toward one option over another, however slightly. For that lexical ordering to happen, an influence in addition to decision costs is probably at work-such as system overload, moral inferiority, or the imperative of breaking ties. The logic of decisioncost sequencing might help identify variables that make good tiebreakers, but it does not justify a tiebreaking decision structure. Similar comments apply to variables that are peculiarly subject to cognitively biased evaluation. See generally Amos Tversky and Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, in Kahneman, Slovic, and Tversky, eds, Judgment under Uncertainty 3, 4-18 (cited in note 16). Such variables might be excluded from consideration in ordinary circumstances without making them tiebreakers. In addition, justifying a tiebreaking decision structure based on the risk of cognitive bias might incorporate a self-defeating assumption. If a decisionmaker will sometimes handle a particular variable poorly, there is reason to suspect that the decisionmaker will sometimes not respect the dictates of a tiebreaking decision structure. I note this concern in the discussion of interpretive method, see Part III.B.2, but I ordinarily-sometimes generously-assume that decisionmakers can follow instructions.
67. Cass R. Sunstein, Incommensurability and Valuation in Law, 92 Mich L Rev 779, 796, 798 (1994) (explaining that incommensurability, in a relatively weak sense, "occurs when the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized");
68. Jeremy Waldron, Fake Incommensurability: A Response to Professor Schauer, 45 Hastings L J 813, 815-16 (1994) (distinguishing the dilemmas posed by strong incommensurability from ordering by lexical priorities).
69. On different specifications for the term, see, for example, Matthew Adler, Incommensurability and Cost-Benefit Analysis, 146 U Pa L Rev 1371, 1383-89 (1998) (offering various definitions and reasons);
70. Henry S. Mather, Law-Making and Incommensurability, 47 McGill L J 345, 348-58 (2002) (defining incommensurability for lawmakers and for others).
71. John Stuart Mill, Utilitarianism 11-16 (Chicago 1906) (originally published 1863) (asserting that certain higher pleasures can safely be judged superior in kind by those with experience).
72. See John Rawls, Justice as Fairness: A Restatement 42-47, 59-61 (Belknap 2001) (Erin Kelly, ed). Rawls also suggested that a principle of meeting "basic needs" might be lexically prior to all three of these principles. See id at 44 n 7.
73. See id at 59-60. A moderated version of Rawls's third (maximin) principle is leximin, which allows comparison of the next-least well-off person if two options yield the same treatment of the very least well-off person. See Amartya Sen, Choice, Welfare and Measurement 24-25 (MIT 1982). For other versions of "prioritarianism" that incorporate some value for equality among people, including a weak version where greater equality is merely a tiebreaker
74. see Bertil Tungodden, The Value of Equality, 19 Econ & Phil 1, 23-32 & table 2 (2003). For a sophisticated review of prioritarian social welfare functions and competitors
75. see Matthew D. Adler, Well- Being and Equity: A Framework for Policy Analysis *ch 4 (Oxford forthcoming 2011).
76. See text accompanying note 102. Consider Norwest Bank Worthington v Ahlers, 485 US 197, 202 (1988) (describing the absolute priority rule in bankruptcy, under which unsecured creditors may object to a reorganization plan that does not make them whole before a junior class receives property).
77. Literally speaking, probabilities always can be assigned. The question is whether some assigned probabilities are basically worthless.
78. See French, Decision Theory at ch 2 (cited in note 9). Here "maximin" simply refers to the action with the highest lowest utility, rather than the well-being of the least-advantaged person.
79. See Isaac Levi, Hard Choices: Decision Making under Unresolved Conflict 110-11 (Cambridge 1986) (relating decision rules for situations of uncertainty to lexicographical decision structures).
80. See Part II.B.2.
81. See US Const Art II, § 1, cl 3.
82. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 264-65 (Knopf 1996).
83. See Part III.A.2.
84. See Kathleen C. Engel and Patricia A. McCoy, Turning a Blind Eye: Wall Street Finance of Predatory Lending, 75 Fordham L Rev 2039, 2045-46 (2007).
85. See, for example, Engquist v Oregon Department of Agriculture, 553 US 591, 601-02 (2008);
86. Vacco v Quill, 521 US 793, 799 (1997).
87. 404 US 71 (1971).
88. Id at 76-77.
89. Id at 73.
90. See Reynolds v Sims, 377 US 533, 568-77 (1964) (requiring legislative districts to have "as nearly ⋯ equal population as is practicable").
91. See also US Const Art I, § 3, cl 2 (instructing that senators "be divided as equally as may be into three Classes" for election).
92. Gray v Sanders, 372 US 368, 381 (1963). Of course, the Court's assertion fails to explain the composition of the United States Senate. See US Const Art I, § 3, cl 2; US Const Art V.
93. See, for example, Immanuel Kant, The Metaphysics of Morals pt 2, §§ 37-39 at 209 (Cambridge 1996) (Mary Gregor, trans and ed) (positing a duty to respect others and a correlative claim to respect);
94. Universal Declaration of Human Rights Art 1, 22, UN General Assembly Res No 217A(III) (1948), UN Doc A/810 (declaring that "[a]ll human beings are born free and equal in dignity and rights" and are "entitled to ⋯ rights indispensable for [their] dignity"). See lso Mill, Utilitarianism at 93 (cited in note 43) (formulating Jeremy Bentham's view as "everybody to count for one, and nobody for more than one").
95. See Best Colleges 2010, US News & World Rep, online at http://colleges.usnews.rankingsandreviews.com/best-colleges/national- universities-rankings (visited Apr 24, 2010) (ranking the California Institute of Technology, MIT, Stanford, and the University of Pennsylvania fourth).
96. I mean either literal or practical indivisibility. See Adam M. Samaha, Randomization in Adjudication, 51 Wm & Mary L Rev 1, 20 (2009).
97. On a related note, the Order of the Coif used to allow its chapters to deny membership to law students who tied for the last of a limited number of places. See Constitution of the Order of the Coif § 4.2(b)(2) (1998).
98. See James H. Andrews, Illinois' At-Large Vote, 55 Natl Civic Rev 253, 253-54 (1966) (explaining that an at-large election was prescribed by a 1954 state constitutional amendment).
99. See Ill Const Art 4, § 3(b).
100. See John S. Jackson and Lourenke Prozesky, Redistricting in Illinois 9-11 (Paul Simon Public Policy Institute, Apr 2005), online at http://opensiuc.lib. siu.edu/cgi/viewcontent.cgi?article=1013&context=ppi-papers (visited Apr 24, 2010) (noting deadlocks in each of the last three redistricting cycles).
101. See Winters v Illinois State Board of Elections, 197 F Supp 2d 1110, 1115 (ND Ill 2001) (three judge panel) (upholding the tiebreaker against due process and equal protection challenges), affd without opinion, 535 US 967 (2002).
102. Proponents of this tiebreaking system might have thought that the prospect of a lottery would frighten legislatures into reaching agreement. This amounts to a "penalty default" tiebreaker, see Ian Ayres and Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L J 87, 91-94 (1989), which is intended to encourage constructive behavior during the prior stage of decisionmaking. The attempt has not been successful in Illinois redistricting, but the strategy may be viable elsewhere. Difficulties include finding a tiebreaker that is sufficiently unpleasant to affect behavior, yet not so awful that the threatened tiebreaker could not credibly be threatened. In any event, seeing decisionmakers resort to tiebreakers informs the rest of us that prior decision rules are failing to resolve issues. This might be good reason to stop and reexamine the design of those prior rules.
103. See Part I.B.1.
104. One factor that must remain unaffected is the distribution of hard cases. If for some reason the addition of another variable leads people to litigate hard cases more often, for example, then the percent chance of a tie might actually increase. Having no strong intuition about the effect on contested cases, I will assume no net effect.
105. See, for example, Melvin Aron Eisenberg, The Limits of Cognition and the Limits of Contract, 47 Stan L Rev 211, 214 (1995).
106. b = 0), and then compares the total scores for each option (for example, A = 3, B = 5, C = 2).
107. The convention in decision theory differs. Ordinarily, decision theorists construct their decision tables to show that the expected utility of different options depends partly on the state of the world after a decision is made, and that the possible states are beyond the decisionmaker's control. Hence, decision tables chart the consequences of a set of actions across a set of states, which may or may not be subject to reliable prediction. See, for example, French, Decision Theory at 33 (cited in note 9). In my simplified discussion, the exact consequences of action A and action B are known to the decisionmaker once values are assigned to the variables, and it is known that each variable is equally likely to take the value -1 or +1.
108. In the case of seven five-value variables, there are 78,125 permutations (57). I thank Daniel Roberts for his help in constructing these tables of permutations. The relevant spreadsheets are available from the author upon request.
109. See Elster, Solomonic Judgements at 38, 54, 73, 75, 107-09 (cited in note 9);
110. Samaha, 51 Wm & Mary L Rev at 21-22 (cited in note 63).
111. See also Peter Stone, The Luck of the Draw *123 (Oxford forthcoming 2010) (on file with author) ("[W]hen claims are equally strong, no relevant distinctions exist, and so an appeal to reason would accomplish nothing.").
112. See Otto Neurath, The Lost Wanderers of Descartes and the Auxiliary Motive, in Otto Neurath, Philosophical Papers: 1913-1946 1, 8 (D. Reidel 1983) (Robert S. Cohen and Marie Neurath, eds and trans) ("Rationalism sees its chief triumph in the clear recognition of the limits of actual insight.").
113. See Edna Ullmann-Margalit and Sidney Morgenbesser, Picking and Choosing, 44 Soc Rsrch 757, 758-65, 773-74 (1977) (distinguishing "picking" from "choosing" based on preferences and reasons).
114. See Samaha, 51 Wm & Mary L Rev at 10-14 (cited in note 63) (distinguishing these concepts).
115. See, for example, In re Brown, 662 NW2d 733, 738 (Mich 2003) (censuring a judge who used a coin flip to determine a custody dispute);
116. New York State Commission on Judicial Conduct, Annual Report 84, 88 (1984) (disciplining a judge who used a coin toss to determine the length of a defendant's jail sentence);
117. In re Friess, 91 AD2d 554, 554-56 (NY App 1982) (denying the judge's request to restrain the Commission from proceeding against him because of the cointoss procedure).
118. See Neil Duxbury, Random Justice: On Lotteries and Legal Decision-Making 43-84 (Oxford 1999) (collecting examples of lotteries in social decisions);
119. Samaha, 51 Wm & Mary L Rev at 29-53 (cited in note 63) (contrasting attitudes toward randomization in case assignment and merits judgments).
120. Neurath, The Lost Wanderers of Descartes at 8-9 (cited in note 76).
121. See also Elster, Solomonic Judgements at 37 (cited in note 9) ("Rather than accept the limits of reason, we prefer the rituals of reason.");
122. John E. Coons, Consistency, 75 Cal L Rev 59, 110 (1987) (similar);
123. Judith Resnik, Precluding Appeals, 70 Cornell L Rev 603, 611 (1985) ("[T]he community wishes judicial rulings to appear to be the product of contemplative, deliberative, cognitive processes.").
124. See An Act Concerning the Integrity and Security of the Voting Process § 46, Conn Pub Act No 07-194 (2007), codified at Conn Gen Stat § 9-446 (showing and amending the previous version of the statute).
125. Connecticut Secretary of the State, Tie Elections Can No Longer Be Decided by a Coin Flip 2 (July 9, 2007), online at http://www.ct.gov/sots/LIB/ sots/Releases/2007/07-09-07NoMoreTies.pdf (visited Apr 24, 2010).
126. See also Susan Bysiewicz, Toss Out Coin-Flip When Vote Is Tied, New Lond Day (Mar 31, 2007) ("Since the coin-flip, I have spoken with many voters who express frustration and disbelief with the way the election was ultimately decided."). A third candidate finished close behind the other two, making salient the thought that voters' opinions had been disregarded.
127. See Conn Gen Stat § 9-446(a)-(b). Randomization is not gone from the system. If the special primary election ends in another tie, lots are drawn. See Conn Gen Stat § 9-446(a)-(b).
128. Calculating the chance of a tie with only one tiebreaker variable is simple, once the permutations are set out for the other variables. The formula is the chance of a tie with the tiebreaker variable alone (for example, 0.2 for a variable with equal chances of taking one of the five values {-2, -1, 0, +1, +2}) multiplied by the chance of a tie with the other variables and no tiebreaker. As in Part II.B.1, I am making the important assumption that the probability of each variable taking the value zero is just as likely as that variable taking any other value in the set of permissible values. In the real world, these probabilities might be very different and sometimes will not be known. The examples discussed in the text are instructive illustrations rather than close approximations of real-life decisionmaking.
129. To reiterate, this calculation does not include cases where the non-tiebreaker variables total up to zero; in those cases, the tiebreaker variable would have been considered anyway. Instead, the missed reversal rate was calculated by counting the number of times the tiebreaker variable took the value -2 or +2 when the non-tiebreaker variables added up to +1 or -1 (respectively), then dividing by the total number of permutations with all variables taken together. Given the restrictions on the variables, this calculation covers every case in which the tiebreaker variable is strong enough to reverse a decision.
130. Recall, however, that throwing another relevant variable into the mix also reduces the chance of a tie, so using a tiebreaker has mixed effects on the number of ties.
131. I again exclude cases where the non-tiebreaker variables add up to zero.
132. Random variables might have other problematic behavioral consequences, depending on how people react to unpredictability associated with randomization.
133. As Lee Fennell has suggested to me, decisionmakers could break ties by randomizing across the relevant variables in the lexically superior decision rule. If this lottery of relevant variables is weighted in accord with the relative importance of each variable within the lexically superior decision rule, then it should avoid the error costs and could avoid the incentive problems that I have raised. Such lotteries can be useful, but they conflict with an assumption of the discussion above-namely, that randomization is not feasible. Whether weighted or unweighted, lotteries often face practical implementation problems. See text accompanying notes 78-81.
134. See Zachary F. Lansdowne, Ordinal Ranking Methods for Multicriterion Decision Making, 43 Naval Rsrch Logistics 613, 613-14 (1996).
135. Admissions, Enrollment, and Preparatory Education Committee, University of California, Berkeley, Tie-Breaking Procedures: Freshman Selection Fall 2009 and Spring 2010 (Oct 10, 2008), online at http://academic-senate.berkeley.edu/ sites/default/files/committees/aepe/tie-break-09.pdf (visited Sept 30, 2010).
136. Part III.B.2 considers whether various presumptions in law sometimes operate as double-counted variables even if they are not formally designed as tiebreakers at all.
137. In fact, if errors are not distributed in a troublesome way, then especially difficult variables might be rough substitutes for random tiebreakers.
138. Perhaps an explanation for our yield-right preference is the longstanding rule for ships at sea. See Convention on the International Regulations for Preventing Collisions at Sea, Rule 15, 1977 28 UST 3459, TIAS No 8587 (1972) ("When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.");
139. The Chesapeake, 5 F Cases 560, 560 (CC EDNY 1867) (describing this as "a simple and plain rule"). Captains' quarters were ordinarily built on the starboard side, meaning that a captain in his quarters with a window would ordinarily be able to see a ship coming from his ship's "right." But in the United States, automobile drivers are situated on the left side of their vehicles. On the other hand, there are less arbitrary explanations for the yield-right rule for ground traffic. Where traffic must stay on the right side of the road, the vehicle to the right will more quickly pass the line of crossing if both vehicles enter the intersection at the same time and travel at the same speed.
140. See Salmon v Wilson, 227 Ill App 286, 288 (1923). So perhaps yield right is a logical extension of a first-in-time principle.
141. See Partridge v Enterprise Transfer Co, 30 NE2d 947, 952 (Ill App 1940).
142. There are exceptions. When four motorists traveling from different directions reach a four-way intersection at approximately the same time, the yield-right rule itself breaks down and someone needs to barge ahead or be waved through.
143. See, for example, Cecil J. Hunt, II, The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence, 11 Mich J Race & L 477, 517 (2006) (relating several definitions of affirmative action to "an explicit consciousness of race and some degree of preference based on perceived racial identity");
144. James P. Sterba, A Definition of Affirmative Action, in Carl Cohen and James P. Sterba, Affirmative Action and Racial Preference: A Debate 199, 200 (Oxford 2003) (defining affirmative action policies partly in terms of "favoring qualified women and minority candidates over qualified men or nonminority candidates");
145. Roberta Ann Johnson, Affirmative Action Policy in the United States: Its Impact on Women, 18 Polit & Pol 77, 77 (1990) (defining affirmative action to include programs that "take some kind of initiative ⋯ to increase, maintain or rearrange the number or status of certain group members usually defined by race or gender, within a larger group").
146. 539 US 306 (2003).
147. See id at 315-16.
148. See id at 334-44. But consider Gratz v Bollinger, 539 US 244, 270 (2003) (invalidating a university admissions program that gave a set number of points to racial minority applicants).
149. 551 US 701 (2007).
150. See id at 711-13; id at 813 (Breyer dissenting) (noting that the plan did not apply to transfer students). Seattle's assignment plan did not mandate a particular racial composition for each school, but it did define relatively homogeneous compositions judged by white versus nonwhite populations and then attempted to moderate those extremes. See id at 712 (majority). Whether such programs count as "affirmative action" is debatable. I use them to illustrate a decision structure.
151. See Parents Involved in Community Schools v Seattle School District No 1, 426 F3d 1162, 1171 (9th Cir 2005) (en banc) (noting that the lottery is "virtually never used"), revd, 551 US 701 (2007).
152. See Parents Involved, 551 US at 733 (concluding that the program was not narrowly tailored).
153. See also Taxman v Board of Education, 91 F3d 1547, 1551, 1558 (3d Cir 1996) (invalidating a race-based tiebreaker used to decide which of two government employees would be laid off);
154. Tevlin v Metropolitan Water Reclamation District of Greater Chicago, 237 F Supp 2d 895, 899 (ND Ill 2002) (describing a program under which race was used to choose among roughly equally qualified candidates for promotion);
155. Portland State University, Office of Affirmative Action and Equal Opportunity, Employment Affirmative Action (2009), online at http://www.afm.pdx.edu/WHATSAFM.html (visited Apr 8, 2010) (describing an affirmative action program as including a racial tiebreaker for qualified applicants);
156. Henry Ramsey, Jr, Affirmative Action at American Bar Association Approved Law Schools: 1979-1980, 30 J Legal Educ 377, 380-81 (1980) (describing a typical process of summarily rejecting and summarily admitting applicants who appeared to be easy cases, then considering additional variables for the remaining pool).
157. Parents Involved, 551 US at 723 (emphasis added).
158. Id at 748 (Roberts) (plurality).
159. See Part II.A.
160. Proponents of affirmative action can hold that a minimum level of competence is a prerequisite to additional evaluation without believing that affirmative action considerations should be the only tiebreakers for choosing among minimally competent candidates. One might reasonably conclude that the ability to graduate from a university is a necessary attribute for admission, regardless of the applicant's contribution to a valued form of diversity. The less intuitive proposition for affirmative action proponents is that race- or sex-related considerations bear a similarly inferior relationship to many other factors taken into account after a minimum level of competence is established.
161. See Parents Involved, 426 F3d at 1169, 1171 (noting that the sibling tiebreaker accounted for 15 to 20 percent of the admissions to the ninth grade class in an oversubscribed school, and that distance accounted for 70 to 75 percent of such admissions).
162. Some justifications for opposing affirmative action might leave space for such programs when applicants appear equally well qualified. Thus, those who believe that market competition generally drives out inefficient racial stereotypes in employment decisions might nevertheless believe that such stereotypes can persist with respect to job applicants who appear tied. See Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv L Rev 1003, 1073 (1995). In this domain, affirmative action proposals might suffer less resistance, even if affirmative action proponents have no principled reason to stop there.
163. See Part II.B.2.b.
164. See Part II.B.2.a.
165. See Part II.B.2.c. Recall that a potential downside of double counting involves problematic incentives for those subject to the decision rule. But not all variable values are subject to the control of interested parties. Depending on which affirmative action considerations are used, applicants might have great difficulty entering and exiting the relevant categories. Incentive effects might be minimal, and an increase in applications from the targeted group might be helpful.
166. On race-conscious but facially race-neutral alternatives, see, for example, Parents Involved, 551 US at 788-89 (Kennedy concurring) (mentioning "strategic site selection of new schools" and "recruiting students and faculty in a targeted fashion," among other methods);
167. James E. Ryan, The Supreme Court and Voluntary Integration, 121 Harv L Rev 131, 135-36 (2007).
168. Commentators have long pointed to the potential significance of appearances with respect to race-conscious decisionmaking. See, for example, Kenneth L. Karst and Harold W. Horowitz, The Bakke Opinions and Equal Protection Doctrine, 14 Harv CR-CL L Rev 7, 14, 28-29 (1979) (discussing Justice Powell's opinion in Bakke as allowing affirmative action programs to survive, perhaps via disguise);
169. John Kaplan, Equal Justice in an Unequal World: Equality for the Negro- The Problem of Special Treatment, 61 Nw U L Rev 363, 388, 407-10 (1966).
170. See Meritor Savings Bank v Vinson, 477 US 57, 66-67 (1986). Critics of affirmative action sometimes recommend lotteries in favor of racial tiebreakers
171. see Pauline T. Kim, The Colorblind Lottery, 72 Fordham L Rev 9, 12-17 (2003) (collecting such arguments), but the discussion in the text is suggesting that random and racial tiebreakers might have something in common.
172. See, for example, Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 NYU L Rev 1134, 1145-71 (2004) (distinguishing racial discrimination from ethnic discrimination);
173. Donald Braman, Of Race and Immutability, 46 UCLA L Rev 1375, 1427-32 (1999) (collecting human biodiversity studies).
174. See, for example, Watts v Indiana, 338 US 49, 62 (1949) (Jackson concurring in part and dissenting in part) ("I do not know the ultimate answer to these questions [about due process, Court authority, and custodial interrogation]; but, for the present, I should not increase the handicap on society."); United States v Robinson, 324 US 282, 286 (1945) (Rutledge dissenting) (stating "I do not know what Congress meant" by a statutory exemption from the death penalty and concluding that the death penalty should not be imposed due to vagueness). Compare id at 286 (Black) ("We do not know what provision of law ⋯ gives us power wholly to nullify the clearly expressed purpose of Congress to authorize the death penalty because of a doubt as to the precise congressional purpose in regard to hypothetical cases that may never arise.").
175. See Boyle v United States, 129 S Ct 2237, 2246 (2009) (stating that arguments regarding statutory purpose, legislative history, and the rule of lenity were irrelevant because the RICO statute was clear).
176. See also Caminetti v United States, 242 US 470, 485 (1917) (denying that interpretation is taking place when statutory meaning is plain).
177. See United States v Shreveport Grain & Elevator Co, 287 US 77, 83 (1932).
178. United States v Hayes, 129 S Ct 1079, 1088-89 (2009
179. quoting United States v Shabani, 513 US 10, 17 (1994
180. See also Hayes, 129 S Ct at 1093 (Roberts dissenting) ("Taking a fair view, the text ⋯ is ambiguous, the structure leans in the defendant's favor, the purpose leans in the Government's favor, and the legislative history does not amount to much. This is a textbook case for application of the rule of lenity.");
181. United States v Santos, 553 US 507, 514 (2008) (plurality) ("Under a long line of our decisions, the tie must go to the defendant."); Healy, 43 Wm & Mary L Rev at 570-74 (cited in note 10) (discussing canons of statutory interpretation as tiebreakers in cases of ambiguity) US 10, 17 (1994). See also Hayes, 129 S Ct at 1093 (Roberts dissenting) ("Taking a fair view, the text ⋯ is ambiguous, the structure leans in the defendant's favor, the purpose leans in the Government's favor, and the legislative history does not amount to much. This is a textbook case for application of the rule of lenity."); United States v Santos, 553 US 507, 514 (2008) (plurality) ("Under a long line of our decisions, the tie must go to the defendant."); Healy, 43 Wm & Mary L Rev at 570-74 (cited in note 10) (discussing canons of statutory interpretation as tiebreakers in cases of ambiguity).
182. See Chevron U.S.A. Inc v NRDC, 467 US 837, 842-44 (1984) (stating the test in two steps, the first asking whether the intent of Congress is clear and the second whether the agency's interpretation is permissible or reasonable). This formulation resembles a tiebreaker, strictly defined, regardless of recent debates over when Chevron applies
183. see Thomas W. Merrill and Kristin E. Hickman, Chevron's Domain, 89 Georgetown L J 833, 873-89 (2001), whether Chevron is a good representation of legislative will
184. see Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L J 64, 74-75 (2008), and whether judges should do a lot or a little thinking at step one. The tiebreaker characterization is trickier, however, if Chevron is reconceptualized as having only one step.
185. See Matthew C. Stephenson and Adrian Vermeule, Chevron Has Only One Step, 95 Va L Rev 597, 604 (2009).
186. See Cass R. Sunstein, Legal Reasoning and Political Conflict 189 (Oxford 1996) (noting a difference between tiebreakers for equipoise and interpretive presumptions).
187. See Landgraf v USI Film Products, 511 US 244, 272-73 (1994).
188. See Medtronic, Inc v Lohr, 518 US 470, 485 (1996).
189. See Microsoft Corp v AT&T Corp, 550 US 437, 454-56 (2007).
190. See Edward J. DeBartolo Corp v Florida Gulf Coast Building and Construction Trades Council, 485 US 568, 575 (1988). We might add the norm of constitutional avoidance as well.
191. See Ashwander v Tennessee Valley Authority, 297 US 288, 347 (1936) (Brandeis concurring).
192. See Ronald Dworkin, Law's Empire 65-68 (Harvard 1986).
193. See Ronald Dworkin, Justice in Robes 122-23 (Harvard 2006).
194. See Michael W. McConnell, The Importance of Humility in Judicial Review, 65 Fordham L Rev 1269, 1273 (1997) ("When the dictates of 'fit' are satisfied, the judge's role is at an end.").
195. See also J. Harvie Wilkinson, III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va L Rev 253, 267 (2009) ("When a constitutional question is so close, ⋯ the tie for many reasons should go to the side of deference to democratic processes.").
196. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 49-52, 18-30, 268-69 (Princeton 2004).
197. See Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 81, 111-12, 310-11 (Cambridge 2002) (claiming that Supreme Court justices "freely implement their personal policy preferences").
198. See, for example, Frank B. Cross, Decision Making in the U.S. Courts of Appeals 11-227 (Stanford 2007) (exploring various factors including standards of review);
199. Brian Z. Tamanaha, The Distorting Slant in Quantitative Studies of Judging, 50 BC L Rev 685, 688 (2009) (recognizing that the key issue is how much, not whether, judicial ideology matters).
200. Benjamin N. Cardozo, The Nature of the Judicial Process 12 (Yale 1921).
201. See also H.L.A. Hart, The Concept of Law 135-36 (Clarendon 2d ed 1994) (discussing a rule-generating function of judges, at least at the margins of statutes and precedents);
202. Frederick Schauer, Judging in a Corner of the Law, 61 S Cal L Rev 1717, 1729-32 (1988) (connecting positivists, realists, and Ronald Dworkin in their treatment of hard cases at the appellate level and suggesting that most appellate cases might be "essentially non-legal enterprises");
203. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J Pub L 279, 280 (1957) (describing Supreme Court justices as making policy choices "from time to time ⋯ where legal criteria are not in any realistic sense adequate to the task").
204. See Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U Chi L Rev 511, 513 (2004) ("[T]he mind shuns cognitively complex and difficult decision tasks by reconstructing them into easy ones, yielding strong, confident conclusions.").
205. See Richard E. Miller and Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 L & Socy Rev 525, 536-43 (1981) (showing a winnowing process from grievance, to claim, to disputed claim, to the use of lawyers and courts).
206. See also Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 123, 251 (Chicago 1994) (noting that courts can address only a small fraction of significant policy disputes).
207. See, for example, Adam M. Samaha, Undue Process, 59 Stan L Rev 601, 624-29 (2006) (reviewing empirical studies).
208. See, for example, Joseph L. Sax, Defending the Environment: A Strategy for Citizen Action 175, 188-89 (Knopf 1971);
209. Lani Guinier, The Supreme Court, 2007 Term-Foreword: Demosprudence through Dissent, 122 Harv L Rev 4, 40-41 (2008).
210. I have ignored arguments that courts are systematically better policymakers for a class of issues. To the extent that this is true, courts should be authorized to generate law whether or not "interpretation" yields uncertainty.
211. See, for example, Kent Greenawalt, Constitutional and Statutory Interpretation, in Jules Coleman and Scott Shapiro, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law 268, 268-70 (Oxford 2002) (including text, original meaning, underlying rationale or basic values, application to particular cases, and stare decisis).
212. See Ronald Dworkin, Taking Rights Seriously 279-90 (Harvard 1977) (arguing that there is a single correct answer, even in hard cases, for each decisionmaker, but counting a conclusion that a case is "tied" as a single correct answer).
213. See Part II.B.1.
214. See text accompanying notes 79-81.
215. See Samaha, 51 Wm & Mary L Rev at 67-70 (cited in note 63).
216. See, for example, United States v R.L.C., 503 US 291, 305 (1992) (plurality) (referring to the "venerable rule of lenity").
217. For the view that judicial enforcement of the rule "is notoriously sporadic and unpredictable," see Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 S Ct Rev 345, 346.
218. Unless "venerable," R.L.C., 503 US at 305, is a misnomer for "old or inexplicable."
219. The importance of a tiebreaker variable depends on how often it will be used. If judges regularly must resort to a lexically inferior consideration because the lexically superior considerations often yield indeterminacy, then the inferior consideration is not so inferior. To the extent that lexically inferior considerations in statutory interpretation are frequently the outcomedeterminative basis for decision, there is less need to belittle them.
220. See Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws, in Amy Gutmann, ed, A Matter of Interpretation 3, 17 (Princeton 1997) (rejecting the use of subjective and unexpressed legislative intent as "incompatible with democratic government").
221. See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 85-88, 98-101 (Knopf 2005) (arguing that "overemphasis on text can lead courts astray, divorcing law from life" and suggesting a mix of sources for statutory interpretation, perhaps especially in hard cases).
222. See, for example, Williams v Taylor, 529 US 420, 431 (2000).
223. See Part II.B.2.c.
224. This is also possible for other kinds of presumptions. See, for example, Clark v Arizona, 548 US 735, 766-77 (2006) (discussing presumptions of innocence and sanity);
225. Maine v Adams, 672 SE2d 862, 867 (Va 2009) (discussing a presumption of ownership based on possession). Unfortunately, the manner in which such presumptions actually operate is at least as difficult to ascertain as it is for interpretive presumptions.
226. Perhaps an expressive function of, or constraint on, law fits less well with a tiebreaking characterization. See, for example, Elizabeth S. Anderson and Richard M. Pildes, Expressive Theories of Law: A General Restatement, 148 U Pa L Rev 1503, 1511-14 (2000) (defining an expressive moral theory in terms of constraints on the public meaning associated with actions). But some versions of expressivism present legal institutions as only one mechanism for expressing group values.
227. See Cass R. Sunstein, On the Expressive Function of Law, 144 U Pa L Rev 2021, 2025-33 (1996) (investigating law as one method of expression for the purpose of changing problematic social norms in order to, for example, solve collective action problems). The more that expressive theories can be reduced or connected to other theories, such as coordination theories of law, the better the tiebreaker analogy will be. (Pubitemid 126408773)
228. See Part I.A.
229. See Barbara A. Curran, The Legal Needs of the Public: A Final Report of a National Survey 235 table 6.8, 240-41 figure 6.1 (ABA 1977) (showing survey responses ranging from over one-third to over half, depending on the cohort). I have found no more recent poll.
230. See Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County, 38 Stan L Rev 623, 681-85 (1986) (finding a social norm against formal trespass claims for damages among rural neighbors).
231. Lincoln, Fragment: Notes for a Law Lecture at 19 (cited in note 1), quoted in, for example, Warren E. Burger, Isn't There a Better Way?, 68 ABA J 274, 275 (1982);
232. Shawn J. Bayern, Comment, Explaining the American Norm against Litigation, 93 Cal L Rev 1697, 1699 (2005).
233. See Miller and Sarat, 15 L & Socy Rev at 536-44 (cited in note 137).
234. See also Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society, 31 UCLA L Rev 4, 20-21 (1983) (discussing survey results regarding consumers). Other studies use expert evaluation in an attempt to isolate only legally cognizable claims for the denominator.
235. See Consortium on Legal Services and the Public, Legal Needs and Civil Justice: A Survey of Americans-Major Findings from the Comprehensive Legal Needs Study 7-8, 17-19 (ABA 1994), online at http://www.abanet.org/legalservices/ downloads/sclaid/legalneedstudy.pdf (visited Apr 24, 2010) (reporting that low- and middleincome people with "legal needs" either do nothing or use nonjudicial mechanisms more often than they resort to the civil justice system but showing that use of the civil justice system is common for family matters);
236. Michael J. Saks, Do We Really Know Anything about the Behavior of the Tort Litigation System-And Why Not?, 140 U Pa L Rev 1147, 1183-90 (1992) (reviewing medical malpractice studies and concluding that victims rarely complain, perhaps because of perceived litigation costs, including stigma, although noting that severe injuries and automobile accidents seem to prompt higher litigation rates).
237. See George L. Priest and Benjamin Klein, The Selection of Disputes for Litigation, 13 J Legal Stud 1, 4-5 (1984). For more on the model, see text accompanying notes 227-30.
238. Consider Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter (Nov 17, 1921), in Association of the Bar of the City of New York, 3 Lectures on Legal Topics 87, 105 (Macmillan 1926) ("[A]s a litigant I should dread a lawsuit beyond almost anything else short of sickness and death."). Having even prevailing parties bear most of their litigation costs can be seen as a feature that pushes courts toward tiebreaker status. For a leading exception, see 42 USC § 1988(b).
239. For a review of the limited comparative data, see generally Gillian K. Hadfield, Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans, 37 Fordham Urban L J 129 (2010) (concluding that individuals in the United States seem to rely on legal institutions less often and that the country seems to devote fewer social resources per filed case, but that Americans seem to face more legal problems per capita).
240. See, for example, Williams v First National Bank, 216 US 582, 595 (1910) ("Compromises of disputed claims are favored by the courts.");
241. In re Tamoxifen Citrate Antitrust Litigation, 466 F3d 187, 202-03 (2d Cir 2006) (similar);
242. D.H. Overmyer Co v Loflin, 440 F2d 1213, 1215 (5th Cir 1971) ("Settlement agreements are highly favored in the law and will be upheld whenever possible because they are a means of amicably resolving doubts and uncertainties and preventing lawsuits.").
243. See also Shedden v Wal-Mart Stores, 196 FRD 484, 486 (ED Mich 2000) (citing "scarce judicial resources"). Another rationale is confidence in private bargaining.
244. See Hennessy v Bacon, 137 US 78, 85 (1890).
245. Compare class action settlements, and their agency problems, as an exceptional circumstance. See FRCP 23(e) (requiring court approval). See also 15 USC § 16(e) (regarding antitrust consent decrees proposed by the federal government); FRCP 23.1(c) (regarding proposed settlements in derivative actions); FRCP 66 (requiring a court order before dismissal of actions involving a receiver).
246. See Federal Arbitration Act, 9 USC § 2 (authorizing courts to enforce private agreements to arbitrate);
247. Southland Corp v Keating, 465 US 1, 10 (1984) (recognizing "a national policy favoring arbitration");
248. Aaron-Andrew P. Bruhl, The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law, 83 NYU L Rev 1420, 1426-33 (2008) (tracking an increasingly pro-arbitration interpretation of the statute in the Supreme Court).
249. See, for example, FRCrP 11(c)(1), (c)(5) (stating that district judges must not participate in discussions regarding plea agreements and authorizing district judges to reject them). But see People v Signo Trading International, 476 NYS2d 239, 241 (NY City Ct 1984) (recognizing that New York trial judges may participate in plea negotiations). A guilty plea might be deemed involuntary if the trial judge improperly encourages a deal.
250. See McMahon v Hodges, 382 F3d 284, 289 n 5 (2d Cir 2004).
251. Santobello v New York, 404 US 257, 260 (1971).
252. See also Robert E. Scott and William J. Stuntz, Plea Bargaining as Contract, 101 Yale L J 1909, 1909-12, 1916 (1992) (asserting participant comfort with the practice and defending a reformed structure).
253. See Robert H. Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L J 950, 997 (1979).
254. See Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J Empirical Legal Stud 705, 730 table 7 (2004) (calculating that settlements were approximately 60 percent of all final dispositions in federal district courts in 2000);
255. Kevin M. Clermont, Litigation Realities Redux, 84 Notre Dame L Rev 1919, 1955 (2009) (calculating a postcommencement settlement rate of nearly 68 percent).
256. See Judith Resnik, Aggregation, Settlement, and Dismay, 80 Cornell L Rev 918, 939 (1995) (citing docket overload and litigation disillusionment as motivators).
257. See Edward F. Sherman, The Impact on Litigation Strategy of Integrating Alternative Dispute Resolution into the Pretrial Process, 15 Rev Litig 503, 503-06 (1996) (discussing the development of court-annexed alternative dispute resolution into the 1990s).
258. See FRCP 16(a)(5) (including settlement promotion as a goal).
259. See FRCP 26(f)(2).
260. 28 USC § 652(a). District courts may, however, exempt cases from this requirement after consulting with lawyers about how to define the exemptions. See 28 USC § 652(b).
261. See generally Manual for Complex Litigation § 13 at 167-74 (Federal Judicial Center 4th ed 2004) (discussing specific techniques);
262. Robert J. Niemic, Donna Stienstra, and Randall E. Ravitz, Guide to Judicial Management of Cases in ADR 1-10, 38-47, 128-35 (Federal Judicial Center 2001) (discussing federal court-annexed ADR options);
263. Jona Goldschmidt and Lisa Milord, Judicial Settlement Ethics: Judges' Guide 70-73 (American Judicature Society 1996) (listing settlement-promotion techniques). For court-annexed efforts in the federal courts in the years before the Alternative Dispute Resolution Act of 1998
264. see Elizabeth Plapinger and Donna Stienstra, ADR and Settlement in the Federal District Courts: A Sourcebook for Judges and Lawyers 3-6, 60-69 (Federal Judicial Center 1996) (noting the popularity of mediation programs).
265. See FRCP 16(c)(1), (c)(2)(I) (authorizing district courts to compel availability to consider possible settlement and to use "special procedures" to facilitate settlement). See also G. Heileman Brewing Co v Joseph Oat Corp, 871 F2d 648, 652-53 (7th Cir 1989) (en banc) (relying on inherent judicial authority to penalize the failure to send a corporate representative with settlement authority
266. Shedden, 196 FRD at 486 (ordering corporate officer presence at trial in response to a no-settlement policy); Kent D. Syverud, The Duty to Settle, 76 Va L Rev 1117, 1126-62 (1990) (discussing a duty to settle imposed by courts on insurers of defendants).
267. See 28 USC § 652(a)-(b). See also In re Atlantic Pipe Corp, 304 F3d 135, 143-45 (1st Cir 2002) (recognizing inherent authority to require mediation efforts, with parties sharing costs).
268. See 28 USC § 652(a)-(b).
269. See Richard L. Marcus, Slouching toward Discretion, 78 Notre Dame L Rev 1561, 1592 (2003).
270. See FRCP 68 (regarding formal offers from defendants); Cal Code Civ Pro § 998 (applying to both plaintiff and defendant offers); Tex R Civ Pro 167.4 (same). See also Delta Airlines v August, US 346, 352 (1981) (characterizing the purpose of FRCP 68 as settlement promotion).
271. See Richard E. Levy and Sidney A. Shapiro, Administrative Procedure and the Decline of the Trial, 51 U Kan L Rev 473, 473-77 (2003).
272. See, for example, Bowen v Michigan Academy of Family Physicians, 476 US 667, 670 (1985) ("We begin with the strong presumption that Congress intends judicial review of administrative action.");
273. Crowell v Benson, 285 US 22, 51-61 (1932) (permitting agency adjudication of fact questions relevant to a "private right" but with judicial review);
274. Laurence H. Tribe, American Constitutional Law 285-98 (West 3d ed 2000) (tracing the wax and wane of the "private rights" distinction);
275. Richard H. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv L Rev 915, 946-48 (1988) (recommending appellate review as the Article III-preserving check on agency adjudication).
276. See 5 USC § 704 (limiting judicial review to "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in court").
277. See Darby v Cisneros, 509 US 137, 153-54 (1993) (explaining that the Administrative Procedure Act governs exhaustion requirements for certain claims, while "the exhaustion doctrine continues to apply as a matter of judicial discretion" in other cases).
278. See Patsy v Board of Regents, 457 US 496, 502-11 (1982).
279. See 42 USC § 1997e(a).
280. See Williamson County Regional Planning Commission v Hamilton Bank of Johnson City, 473 US 172, 186-99 (1985) (faulting a § 1983 takings plaintiff for not first seeking relief via zoning variances and an inverse condemnation action). If a state court actually reaches the merits of a federal takings claim while the claimant seeks state relief, a subsequent federal court judgment might be precluded.
281. See San Remo Hotel v City and County of San Francisco, 545 US 323, 345-46 (2005).
282. The political question doctrine, for instance, does not make courts into last-ditch dispute resolution mechanisms; its aspiration is to shut the courthouse door against a category of disputes that judges want resolved elsewhere. See Baker v Carr, 369 US 186, 217 (1962);
283. Jesse H. Choper, The Political Question Doctrine: Suggested Criteria, 54 Duke L J 1457, 1461-62 (2005) (discussing the scope of the doctrine);
284. Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum L Rev 237, 300-36 (2002) (describing the doctrine's weakening).
285. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 111-98 (Bobbs-Merrill 2d ed 1986).
286. See, for example, Texas v United States, 523 US 296, 300-02 (1998) (denying ripeness where the state procedure to be protected had not been and might not be used);
287. Abbott Laboratories v Gardner, 387 US 136, 148-49 (1967) (looking for hardship in the absence of immediate adjudication plus present fitness for judicial resolution).
288. See United States v Freuhauf, 365 US 146, 157 (1961) (expressing concern over issues that lack focus when not preceded by proper adversarial contestation);
289. Felix Frankfurter, A Note on Advisory Opinions, 37 Harv L Rev 1002, 1005 (1924) ("[T]he legislature must be given ample scope for putting its prophecies to the test of proof.").
290. See, for example, Younger v Harris, 401 US 37, 43-44 (1971). Parties inhibited by Younger abstention may end up litigating federal claims in the Supreme Court on direct review or in a lower federal court on habeas.
291. See, for example, Railroad Commission of Texas v Pullman Co, 312 US 496, 499-502 (1941). Federal litigation detoured by Pullman abstention may return to the abstaining court.
292. On the expansion of federal jurisdiction, see, for example, Samuel Issacharoff and Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L Rev 1353, 1365-1414 (2006). For the latest major struggle to retain judicial oversight
293. Boumediene v Bush, 553 US 723, 769-71 (2008) (preserving habeas jurisdiction over Guantanamo Bay detainees). On the differences with respect to state courts
294. see generally Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 Harv L Rev 1833 (2001).
295. Allen v Wright, 468 US 737, 752 (1984) (quotation marks omitted)
296. Quoting Chicago and Grand Trunk Railway Co v Wellman, 143 US 339, 345 (1892).
297. See United States v Morrison, 529 US 598, 616 n 7 (2000);
298. Cooper v Aaron, 358 US 1, 18 (1958). That is, until new law is made via Article V or by the Court itself.
299. See Chicago & Southern Air Lines v Waterman SS Corp, 333 US 103, 113 (1948) ("[I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render.").
300. 514 US 211 (1995).
301. Id at 218-19, quoting Frank H. Easterbrook, Presidential Review, 40 Case W Res L Rev 905, 926 (1990) ("[A] 'judicial Power' is one to render dispositive judgments.").
302. See Pennsylvania Railroad Co v Chamberlain, 288 US 333, 339 (1933) (explaining the adverse consequence of bearing the burden of persuasion "where proven facts give equal support to each of two inconsistent inferences"). The preponderance rule is a tiebreaker in the loose sense. It is more like a unitary majority vote requirement than a lexically inferior rule.
303. See Part I. Illinois courts used to allow a separate jury instruction to the effect that "if the evidence is evenly balanced, then the jury shall find for the defendant," Alexander v Sullivan, 78 NE2d 333, 336 (Ill App 1948), but contemporary thinking is that this instruction, however technically accurate, is "slanted" and unhelpful, see Illinois Pattern Jury Instructions: Civil § 4.15 (West). But see New Jersey Model Jury Charges (Civil) § 1:12I (West) (including such an instruction).
304. See text accompanying note 122. Whether or not proof beyond a reasonable
305. See Warner-Lambert Co v Kent, 552 US 440, 441 (2008) (per curiam). See also 28 USC § 2109 (reaching a similar result in the absence of a quorum in the Supreme Court, except in cases of direct appeal from district courts);
306. Morrison Knudsen Corp v Fireman's Fund Insurance Co, 175 F3d 1221, 1237-39 (10th Cir 1999) (holding that the appellant loses when the appendix is incomplete and prevents review). Alternatively, this rule could be justified on grounds of clarity: "reversal" might leave more confusion than outright affirmance.
307. See Tarr and O'Connor, Congress A to Z at 472 (cited in note 8); Robert, et al, Robert's Rules at 392 (cited in note 4). An additional justification involves stability: approving motions on tie votes might leave those measures open to wasteful reconsideration, assuming no agenda restrictions, while defeating them avoids this oscillation. In any event, the current rule does not stop advocates of change from tinkering with their proposal and bringing the revised version to a new vote.
308. See Kansas v Marsh, 548 US 163, 181 (2006).
309. See note 8 and accompanying text.
310. See note 123.
311. See O'Neal v McAninch, 513 US 432, 435 (1995). The same rule applies on direct review, id at 437-38, but the application to habeas is less explicable as status quo bias. See id at 442-43 (stressing the danger of custody infected by constitutional error).
312. To take one example, the Supreme Court invalidated government sex discrimination while the Equal Rights Amendment was being debated in state legislatures. See Frontiero v Richardson, 411 US 677, 687-88 (1973) (plurality) (using congressional approval for the amendment as support for applying strict scrutiny); id at 692 (Powell concurring) (objecting to strict scrutiny given the ongoing ratification debate, although not to judicial invalidation of the sex classification at issue).
313. See In re NLO, Inc, 5 F3d 154, 157-58 (6th Cir 1993) (holding that district courts may not order parties to participate in summary jury trials);
314. Kothe v Smith, 771 F2d 667, 669-70 (2d Cir 1985) (holding that a district judge improperly sanctioned one party to a dispute for failing to settle before trial). Actually, the anticoercion principle partly supports the analogy: if judges always mandate settlement, adjudication would have no ties to break.
315. See, for example, Barry Friedman, Dialogue and Judicial Review, 91 Mich L Rev 577, 653 (1993) (describing judicial review as part of "an elaborate discussion" with the public).
316. 531 US 98 (2000).
317. See id at 100-03 (describing counts, recounts, litigation, remand, and more).
318. See Electoral Count Act of 1887, 24 Stat 373, codified at 3 USC §§ 5-7, 15-18; Bush v Gore, 531 US at 153 (Breyer dissenting);
319. Samuel Issacharoff, Political Judgments, 68 U Chi L Rev 637, 639, 651-53, 656 (2001) (suggesting that the Court had "a warrant to enter the political fray" only "when no other institutional actor could repair the damage").
320. Consider Bush v Palm Beach County Canvassing Board, 531 US 70, 78 (2000) (per curiam) (remanding for clarification of a decision that required inclusion of some manual recounts).
321. See Adam M. Samaha, Originalism's Expiration Date, 30 Cardozo L Rev 1295, 1312 (2008) ("In our system, nonjudicial actors bear initial responsibility for understanding the Constitution's meaning.").
322. Bickel, The Least Dangerous Branch at 25 (cited in note 190) ("Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar.").
323. Ronald Dworkin, The Forum of Principle, 56 NYU L Rev 469, 518 (1981) (arguing that law provides a space for contestation backed by matters of principle distinct from "the battlefield of power politics").
324. Owen Fiss, Against Settlement, 93 Yale L J 1073, 1075, 1086-87 (1984).
325. See Owen Fiss, The Supreme Court, 1978 Term-Foreword: The Forms of Justice, 93 Harv L Rev 1, 30 (1979) (suggesting arbitration). Compare Fiss, 93 Yale L J at 1087-88 (cited in note 219) (doubting that judges could correctly assign cases to adjudication and settlement tracks).
326. See Fiss, 93 Yale L J at 1076-78, 1085-87 (cited in note 219).
327. Fiss, 91 Harv L Rev at 31 (cited in note 220). See id at 34 (asserting the special independence and dialogic abilities of courts).
328. See also Judith Resnik, Managerial Judges, 96 Harv L Rev 374, 431 (1982) ("[T]he quintessential judicial obligations of conducting a reasoned inquiry, articulating the reasons for decision, and subjecting those reasons to appellate review ⋯ have long defined judging and distinguished it from other tasks.").
329. See Ronald Dworkin, Freedom's Law 34-35 (Harvard 1996) (recognizing that the institutional questions reduce to practical considerations and results);
330. Bickel, The Least Dangerous Branch at 24-26 (cited in note 190) (comparing courts and legislatures in addressing the so-called countermajoritarian difficulty);
331. Fiss, 91 Harv L Rev at 1-2, 31-34 (cited in note 220) (comparing courts and agencies on several dimensions relevant to accomplishing institutional reform).
332. Manual for Complex Litigation § 13.11 at 167 (cited in note 176).
333. See Frederick Schauer, The Supreme Court, 2005 Term-Foreword: The Court's Agenda- And the Nation's, 120 Harv L Rev 4, 9, 49 (2006) (arguing that most Supreme Court adjudication deals with non-salient, even if sometimes influential, policies);
334. Komesar, Imperfect Alternatives at 123, 251 (cited in note 137) (noting that the "physical resources and personnel" of the judiciary are more modest than those of the political branches, "dictat[ing] a confined judicial role").
335. Compare David Luban, Settlements and the Erosion of the Public Realm, 83 Georgetown L J 2619, 2647 (1995) (suggesting that settlement is unavoidable and can be reformed).
336. See, for example, Mark A. Graber, Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship, 27 L & Soc Inquiry 309, 329 (2002).
337. See, for example, Priest and Klein, 13 J Legal Stud at 4-5, 17 (cited in note 161
338. Schauer, 61 S Cal L Rev at 1722-23, 1726-27 (cited in note 135) (finding similar thoughts in Karl Llewellyn's work on appellate judging). For a discussion of the serious challenges for a model this simple
339. see generally Kevin M. Clermont and Theodore Eisenberg, Litigation Realities, 88 Cornell L Rev 119 (2002).
340. See Priest and Klein, 13 J Legal Stud at 16-17 (cited in note 161).
341. See Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J Legal Stud 337, 341 (1990) (noting that Priest and Klein's 50 percent hypothesis allows "one [to] model the outcome of litigated cases by analogy to flips of an unbiased coin"). In fact, at least one evolutionary model of legal development performs just fine when judges flip coins.
342. See Paul H. Rubin, Why Is the Common Law Efficient?, 6 J Legal Stud 51, 53-55, 61 (1977) (relying on a selection effect in which parties who favor the more efficient rule are less likely to settle and stating that the model works if merits decisions are made "randomly").
343. For empirical challenges to the Priest-Klein prediction that the plaintiff win rate should be about 50 percent, given their assumptions, see, for example Clermont and Eisenberg, 88 Cornell L Rev at 150-52 (cited in note 227) (observing appellate affirmance rates on the order of 80 percent and suggesting relatively low litigation costs and perhaps indignation as factors explaining weak appeals);
344. Eisenberg, 19 J Legal Stud at 338-39, 348 (cited in note 229);
345. Linda R. Stanley and Don L. Coursey, Empirical Evidence on the Selection Hypothesis and the Decision to Litigate or Settle, 19 J Legal Stud 145, 149, 159-64 (1990) (reporting experimental data in which settled cases were not meaningfully different, discussing strategic behavior and homoscedastic error variance as explanations, yet finding that less information does reduce settlement chances). One simple explanation for unsettled cases despite a largely predictable result at trial is asymmetric stakes. ee, for example, Priest and Klein, 13 J Legal Stud at 24-29 (cited in note 161) (recognizing that point);
346. Rubin, 6 J Legal Stud at 53 (cited in note 229) (emphasizing incentive differences for one-shot and repeat players). But settlement in cases that many judges would experience as relatively easy may also be thwarted by strategic behavior during settlement negotiations, optimism bias in one or more parties, and a passion for public vindication, among other forces.
347. See, for example, Mark Tushnet, Critical Legal Theory (without Modifiers) in the United States, 13 J Polit Phil 99, 108 (2005) (noting the moderated claims of critical legal theorists). Actually, decision will sometimes be difficult, perhaps more difficult, when conventional legal analysis is disregarded. Converting every litigated question into a "policy" question does not necessarily simplify the matter.
348. Consider Richard A. Posner, How Judges Think 230-31 (Harvard 2008) (acknowledging that both legal reasoning and pragmatism can run out);
349. Jack M. Balkin, Deconstruction's Legal Career, 27 Cardozo L Rev 719, 734 (2005) (suggesting that "social construction ⋯ helped produce the internal sense in lawyers and judges that some arguments were better than others").
350. For characterizations of constitutional choices, see Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 Colum L Rev 606, 663-64 (2008) ("[A] host of constitutional design choices are subject to serious uncertainty regarding their influence on any number of outcomes.");
351. Samaha, 59 Stan L Rev at 625-29 (cited in note 138) (reviewing empirical literature for the preceding proposition).
352. Such opinions are sometimes at odds. Compare District of Columbia v Heller, 128 S Ct 2783, 2799 (2008) (indicating "no doubt" that the Second Amendment confers an individual right unconnected with militia service) with id at 2826 (Stevens dissenting) (asserting that "the Framers' single-minded focus ⋯ was on military uses of firearms").
353. Brown v Allen, 344 US 443, 540 (1953) (Jackson concurring).
354. See note 79 and accompanying text.
355. See Samaha, 51 Wm & Mary L Rev at 5, 47-52 (cited in note 63) (discussing the extent of and limits on case assignment lotteries).
356. See id at 53-57, 64 (exploring the relationships among judicial competence, ideology, and decisions).
357. See id at 53-66 (vetting the connections and possible disconnects between case assignment lotteries and merits randomization and concluding that the former does not fully track the optimal domain for randomization suggested by ideal theory).
358. Coons, 75 Cal L Rev at 110 (cited in note 81).
359. See Lawrence M. Friedman, A History of American Law ix (Simon & Schuster 3d ed 2005) ("Perhaps it is a distorted mirror. Perhaps in some regards society mirrors law. Surely law and society interact. The central point remains: Law is the product of social forces, working in society. If it has a life of its own, it is a narrow and restricted life.");
360. Lawrence M. Friedman, Law and Society: An Introduction 107 (Prentice-Hall 1977) ("In the long run, society molds legal thought in its image.").
361. For a review of Savigny's theory, such as it is, see Anna di Robilant, Genealogies of Soft Law, 54 Am J Comp L 499, 527-32 (2006).
362. For an excellent conceptual overview of internal and external theories of legal change, see generally William Ewald, Comparative Jurisprudence (II): The Logic of Legal Transplants, 43 Am J Comp L 489 (1995).
363. Lawrence M. Friedman, Law in America: A Short History 42 (Modern Library 2002) (describing influences on nineteenth-century judges, which is particularly challenging).
364. See Kenneth S. Abraham, Custom, Non-customary Practice, and Negligence, 109 Colum L Rev 1784, 1786 (2009) (explaining that the newest draft of the Restatement of Torts allows parties to present custom evidence without it becoming dispositive);
365. Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property, 93 Va L Rev 1899, 1930-67 (2007) (collecting examples from intellectual property cases and criticizing the influence of custom therein). Rothman points out that custom can be driven by litigation-avoidance preferences, see id at 1951, and there are obvious problems if courts then import such play-it-safe practices back into the legal norm.
366. See UCC § 1-205 (covering the relevance of course of dealing and usage of trade evidence).
367. See, for example, Alan Watson, Legal Transplants: An Approach to Comparative Law 66-69 (Georgia 2d ed 1993) (investigating reliance on, and deviations from, biblical commands in the formal law of Massachusetts Bay Colony).
368. See, for example, Robert G. McCloskey, The American Supreme Court 225 (Chicago 1960);
369. Dahl, 6 J Pub L at 281 (cited in note 135) (finding that Court policy ultimately converges with the positions of national governing coalitions).
370. See also Dean Alfange, The Supreme Court and the National Will 220-21 (Doubleday 1937).
371. For a recent study in the same spirit by a law professor, see Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 367-76 (Farrar, Straus and Giroux 2009).
372. See, for example, William N. Eskridge, Jr, Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich L Rev 2062, 2064 (2002);
373. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Cal L Rev 1323, 1323 (2006) ("Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding.");
374. Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv L Rev 191, 201-36 (2008).
375. See also Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 Const Comment 701, 724 (2007) ("[T]here is no view from nowhere in constitutional law, no place for a Justice to stand that is divorced from the culture and society in which the Court operates.").
376. See Part II.B.2.c.