Decisional Sequencing

This Faculty Working Paper has been updated and posted within the Faculty Scholarly Works Series. It is currently available here.


Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters before them. To what extent do the decisionmakers enjoy unfettered discretion? To what extent can the parties manipulate the decisional sequence? The Article first considers a simple model of sequencing rules that classifies decisional sequences into three forms – horizontal sequencing rules that govern the decisional order for a single decisionmaker, vertical sequencing rules that govern when a decisionmaker’s rulings can be appealed to a reviewing body such as an appellate court and transjurisdictional sequencing rules that govern the extent to which decisionmakers will defer to each other in parallel proceedings. It draws on examples from both civil litigation and arbitration to demonstrate how sequencing rules vary across these two “forms” of dispute resolution. After flushing out the contours of the simple model, the Article then considers the extent to which sequencing rules operate as mandatory rules (from which parties cannot derogate) and the extent to which they operate as default rules (around which the parties can contract). The Article concludes by considering how the model developed herein can be used to help solve several decisional sequencing dilemmas currently bedeviling courts and arbitrators.