Accelerating Advisory Opinions: Critique and Proposal

Abstract

Time is a fundamental component of all social organization. Any component may be manipulated to achieve preferred outcomes, but time is particularly malleable. The concept of linear time, which allows complex sequential and conditional planning and deferred allocation of resources, is a critical part of Western political theory, for it facilitates the extension of present control far into the future. A peculiar genius of the law has been the elaboration of this linearism and the manipulation and supervision of different phases of future activity. Manipulation of time in mundane legal activities has a utility per se in that it permits order and efficiency in the complex, adversarial, but necessarily collaborative operations of groups and individuals. It is also a prerequisite to the realization of many other procedural privileges; without "enough" time, the privileges may be meaningless and even taunting. A subtle aspect of adjudicative procedure is the design and implementation of the temporal sequences in which litigation takes place. I will refer generally to this manipulation of time as "temporal procedures." Temporal procedures have rationales. They are designed and refined by practice to maximize the efficiency of decisions and the skill of litigants and court in standardized contexts. Variations from these procedures can be evaluated in terms of their costs and their gains.