This article suggests an alternative way of thinking about the role of law at the time of divorce. It is concerned primarily with the impact of the legal system on negotiations and bargaining that occur outside the courtroom. We see the primary function of contemporary divorce law not as imposing order from above, but rather as providing a framework within which divorcing couples can themselves determine their postdissolution rights and responsibilities. This process by which parties to a marriage are empowered to create their own legally enforceable commitments is a form of "private ordering."'

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This Article explores a problem that may occur in appellate cases in which two or more issues present themselves. In these problematic cases, the court may reach a decision as to outcome in one of two ways, either by summing the votes of individual judges as to the outcome of the case overall, or by summing the votes of individual judges on each of the issues and then combining the results. The two methods of decisionmaking can lead to different results. This "doctrinal paradox" is unfortunate because cases are supposed to be decided on their merits rather than by an unconsidered choice of voting protocoL Professors Kornhauser and Sager argue that neither of the decisional methods is always superior. Rather, appellate courts, as "collegial enterprises, " should directly confront the doctrinal paradox when it arises and deliberately determine the method of case decision that will control Professors Kornhauser and Sager suggest that the best method for choosing between decisional methods is a "metavote," with members of a court voting for a particular method after discussing such factors as whether the outcome or rationales for it are more important, whether the issues to be decided are independent, the seriousness of the consequences of the outcome, hierarchical management concerns, and internal management considerations. Lewis Kornhauser has pursued, in an analytically more formal environment, several themes connected to our work here.

Consider an individual acting on behalf of an enterprise such as a private business or a public agency. During the course of his duties, the individual may injure a third party who bears no contractual relation to the enterprise.' Tort law must then allocate the accident cost among three parties: the enterprise, actor and victim. 2 In this Article, I shall assume that while the law has decided to shift the costs from the victim, it must choose between assigning the costs to the enterprise or to the individual.This Article examines a single, important factor relevant to the choice between the legal regimes: the degree of care exercised by the enterprise and agent. 3 Under one regime, called "agent liability," the individual who acts is liable but the enterprise is not. Under the other regime, called "enterprise liability," the enterprise is liable while the agent is not.After identifying those conditions under which agent and enterprise liability produce the same levels of care and those under which they produce different care levels, 4 I then argue that the model t