Quantitative Tie-Breakers (Theory Moves)

Quantitative Tie-Breakers: [kwon-ti-tey-tiv tahy brey-kers] Noun Phrase

The fundamental issue in the final stages of appellate adjudication almost always takes the form, “How can something that is inescapably two or more things at once be only just one thing.”   (Apologies to Thomas Reed Powell.)  There are several techniques that are deployed to resolve this issue.  One of them is the “quantitative tie breaker”.

The idea is that even if the “something” is undeniably two or more things at once it is nonetheless more one thing than the other and thus 1)  it is really one thing or 2) we ought to treat it as if it were really one thing.   Particularly in contemporary law, the key terms used to effectuate such reductive operations are often quantitative in character.

Examples:

The “something” (whatever it may be) is….

Predominantly

Primarily

Preponderantly

Principally

Substantially

Largely….

…..one thing.

See also: “The Energy Aesthetic” in The Aesthetics of American Law

Quantitative tie breakers do their work by presenting the crucial issue as one of quantity, measurement, and calculation.   (i.e. an issue of more or less).  One of the interesting features of contemporary American (legal) culture is the apparent ease with which we accept the quantitative frame (and the quantitative tie-breakers) as natural and appropriate (even when a modicum of critical thought would, in many contexts, reveal their incoherence and inadequacy.)

By way of contrast to quantitative tie-breakers, note that a somewhat older, though still extant, jurisprudence would have resolved these issues (Transforming the two or more things at once into just one thing) through a different aesthetics.  Instead of quantity, measurement and calculation, we would be speaking in terms of “Essentialist Tie-Breakers”:

The “something” (whatever it may be) is….

Essentially

Fundamentally

Basically

Intrinsically

At bottom….

…..one thing.

Caution: The quantitative, measurement, calculation images and metaphors of the quantitative tie-breakers are arguably sometimes apt (the various aspects of the “something” are clearly quantifiable in terms of hard data (e.g. dollar costs, number of parties affected, etc.) and sometimes quite inapt (as when we are trying to evaluate moral or causal responsibility).    Realize as well that quantitative tie-breakers (e.g. “predominantly”) are in some cases, a convenient way to sum up a sophisticated analysis, while in other cases, they serve as a relatively mindless assertion that eschews critical thought while also eclipsing its absence.

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