On Law's Tiebreakers

Abstract

Tiebreakers are familiar tools for decision-making. Ready examples include penalty shootouts in soccer matches and vice presidents breaking tie votes in the Senate. However, we lack a precise understanding of the concept and a normative theory for the use of tiebreakers. This Article strictly defines a tiebreaker as a kind of lexically inferior decision rule and then builds justifications for tiebreaking decision structures. Concentrating on situations in which ties are considered intolerable, the Article suggests methods for either preventing ties or designing sensible tiebreakers. As to the latter, tradeoffs are identified for the use of random variables, morally relevant variables, and double counted variables within a lexically inferior decision rule. Finally, the Article applies its conceptual and normative lessons to three problems: the best design for affirmative action programs, the proper interpretive method for legal texts, and the core function of adjudication. The closing sections evaluate law and adjudication as one large tiebreaker for the rest of social life, with contrasts and comparisons to other major theories for the mission of the court system in the United States.

Keywords: tiebreakers, decision theory, lexical ordering, equipoise, uncertainty, interpretive method, affirmative action, adjudication