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Procedural Posture and Social Choice

By Michael Risch. Full Text.

Lawyers, judges, and professors have always been interested in the way cases unfold procedurally—their procedural posture. To date, however, nobody has provided a generalized theoretical framework to explain how procedural posture influences outcomes. This Article uses social choice theory to fill that void, providing much-needed insight into the ways that trial court litigation is influenced by the procedural agenda. Social choice theory considers how individual preferences translate to the collective desire. It is a messy business. One key insight of social choice theory is that whoever controls the decision agenda can control the outcome.

This Article conceptualizes trial court litigation within social choice theory, showing how the parties and the court each jostle for an agenda that will lead the collective to their preferred individual outcome, even if that outcome is simply “follow the law.” Using theoretical, exemplary, and empirical analysis, the Article shows a variety of ways that participants express preferences and control the agenda. Once viewed within social choice theory, it follows that procedural posture is a form of agenda control. Procedural posture as agenda control provides a payoff not previously found in the literature. It explains why procedure is so important, provides a nuanced way to consider procedural rules, and helps explain seemingly bad outcomes. Most important, it provides a new tool that commentators can use to evaluate intentional and unintentional bias in the system in a methodological way.