ABSTRACT :: This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, the judge gets to choose the decisional sequence in light of those various interests.
The law sees fit to put few limits on the judge’s power to sequence. The few limits are, in fact, quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide Article III justiciability and subject-matter jurisdiction before ruling on the merits. The Beacon Theatres-Dairy Queen rule requires a federal trial judge to avoid preclusion by first giving to the jury a factual issue common to the merits of both law and equity claims for relief joined in the same case. The impact of these two narrow limits might seem mundane, but much turns on their scope. The sequence of jurisdictional defenses can result in dismissing a claim when the court lacked authority to hear the case and may lock a litigant out of both federal and state courts. And, while a jury’s decision on damages would restrain a judge’s decision on final injunctive relief, the judge remains free to decide jurisdictional defenses, class certification, or evidentiary issues without worry of affecting the jury’s later consideration of common issues.