Facts in Law and Facts of Law
| Published date | 01 July 2003 |
| Author | Michael S. Pardo,Ronald J. Allen |
| DOI | 10.1177/136571270300700301 |
| Date | 01 July 2003 |
| Subject Matter | Article |
Facts
in
law and facts
of law
By
Ronald
J.
Allen
*
and Michael
S.
Pardo
*
*
John Henry Wigmore Professor of Law, Northwestern University; and
Staff Law Clerk, United States Court of Appeals for the Seventh
Circuit, respectively
Abstract.
The nature of the distinction between issues of fact and issues of law
is considered. Courts in the United States and England have failed to articulate
the distinction. Arguments that a distinction may be drawn on ontological,
epistemological
or
analytical grounds are considered and rejected.
It
is argued
that the law/fact distinction involves a complex interaction between three
variables:
(1)
conventional meanings of the terms ‘law’ and ‘fact’;
(2)
structural
relationships within the legal process; and
(3)
a distinction between matters of
general import and specific. localised phenomena.
It
is concluded that this
interaction is too complex to be reduced to simple rules and that the labelling
of a particular issue as ‘legal’
or
‘factual’ is essentially a functional decision
made on pragmatic grounds.
he separation of legal issues from factual issues is, as Mijan Damaska
reports, a ‘relatively novel concern’ within Western legal systems.’
In
England the distinction appears
to
have arisen primarily as a jurycontrol
device: judges don’t answer questions of fact, Lord Coke pronounced, and juries
don’t answer questions of law? While this rule suggested a sharp distinction
between legal and factual matters, the line between the two was vague, there
was no test to decide which is which, and a number of issues could be classified
either way? ‘In German lands’ the law-fact distinction likewise emerged ‘in the
We are grateful to Roger Leng and an anonymous referee for helpful comments.
1
M.
Damaska, ‘Rational and Irrational Proof Revisited’ (1997) 5
Cardozo
journal
oflntmtational and
Comparative
Law
25 at 26-8.
2 ‘ad questionem facti non respondent judices
.
.
.
ad questionem juris non respondent juratores’:
N.
Roscoe Pound.Jurisprudence (1959) 547 (citing Co. Lit.
155b
(1628);
lack
v
Clark.
1 Rolde 125 at
132 (1613)).
3 D.
G.
Smith. ‘The Historical and Constitutional Contexts of Jury Reform’ (1996)
25
Hofstra
Law
Review
377 at 414-18;
R
J.
Farley. ‘Instructions to Juries-Their Role in the Judicial hocess’ (1932)
42 Yale
LI
194 at 196.
I
..
Northwestern University,
JD.
2001; Illinois Wesleyan University,
Bh
1998.
THE
INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
(2003)
7
E&P
153-171 153
FACTS
IN
LAW
AND FACTS OF
LAW
sixteenth century,
pari
passu
with the “lawyerization” of the administration of
justice, and the introduction of regular instruments of appellate review on the
Roman-canon model’? Motivating the distinction in Anglo-American law is that
certain issues-the so-called ‘legal’ ones-are too important to be left to juries
because, as Blackstone later explained, ‘in the hands of the multitude, their
decisions would be wild and capricious’?
There are
two
striking ironies here. First, separating legal from factual issues
arose as a feature of systems of ‘rational’ proof, yet there has been no consistent,
rational test for separating law and fact. Second, the distinction arose in part to
prevent ‘wild and capricious’ decisions by jurors, yet the attempt to determine
which issues are legal and which are factual has itself led to what might fairly be
characterised as ‘wild and capricious’ decisions by judges and legislatures.
At least this has been the case in the United States, where the Supreme Court has
referred to the distinction as ‘elusive’,6 ‘~lippery’,~ possessing a ‘vexing nature’,8
and bemoaned that no rule
or
principle will ‘unerringly distinguish a factual
finding from a legal conclusion’? In a recent case, for example, a majority of the
court attempted to justify its conclusion about what a ‘fact’ is by analysing the
relative institutional competencies of judges and juries, rather than the other
way around.’O In a forthcoming article we document the analytical disarray in
US
case law and scholarship regarding the law-fact distinction-where it causes
confusion in numerous areas of law-and we explain the reasons and
misconceptions responsible for this confusion as well as the variables that control
law-fact classification in practice.” But the problem is not just an American one.
William Twining has noted that the law-fact distinction is ‘notoriously fragile’
as a general matter within Western legal systems.12 In England, as in the United
States, the line between law and fact is unclear despite the distinction serving
key doctrinal
function^.'^
4 Damaska, above n.
1
at 26.
5
W.
Blackstone, 4
Commentaries
379-80; see also Smith, above n. 3 at
415.
6
Miller
v
Fenton,
474
US
104 at 113 (1985).
7
Thompson
v
Keohane,
516
US
99 at
111
(1995).
8
Pullman-Standard
v
Swint.
456
US
273 at 288 (1982).
9 Ibid.
10
Cooper Industries,
Inc.
v
Leatherman
Tool
Group,
Inc..
121
S
Ct 1678 (2001).
11
R.
J.
Allen and
M.
S.
Pardo, ‘The Myth of the Law-Fact Distinction’ (in press) 97
Northwestern
12
W.
Twining, ‘Civilians Don’t
Try:
A
Comment on Mirjan Damaska’s “Rational and Irrational
13
Ibid.;
T.
Endicott, ‘Questions of
Law’
(1998) 114
Law QuarterIy Review
292;
A.
S.
Zuckerman. ‘Law,
University Law Review.
Proof Revisited”’ (1997) 5
Cardozo journal ofhternational and Comparative Law
69 at 75.
Fact or rustice’ (1986) 66
Boston UniversiCy Law Review
487.
154
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
81
PROOF
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