A tie is like kissing your sister1 This unique turn of phrase captures the American attitude towards ties—there are, or should be, winners and losers. But this notion of dedicated victories and defeats is not as strong as it once was. Whether it is the increased frequency of ties in the National Football League (“NFL”) over the past few years, the growth of soccer in the United States, or the split nature of our bicameral legislature, ties are a familiar part of the average American’s experience. Even our judicial system cannot avoid questions of “ties.” The idea that every court case has an established winner and loser in the context of cost-shifting has been increasingly raised in federal appellate court cases within the past 50 years. This trend suggests that, even when cases end in a judgment for or against a party, litigants can end up on the same equal footing as they started; or even worse, the parties may be denied otherwise customary cost-shifting on the basis that neither of them was able to win a decisive victory.

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