Questions of Fact in the Practice of Law: A Response to Allen and Pardo's ‘Facts in Law and Facts of Law’
| Author | Paul F. Kirgis |
| Published date | 01 January 2004 |
| Date | 01 January 2004 |
| DOI | http://doi.org/10.1350/ijep.8.1.47.36511 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 47
REDISCOVERING THE RIGHT TO CONFRONT PROSECUTION WITNESSES
I
(2004) 8 E&P 47–61
Questions of fact in the
practice of law: A response
to Allen and Pardo’s ‘Facts
in Law and Facts of Law’
By Paul F. Kirgis
Associate Professor, St John’s University School of Law
Abstract. In an article in this journal, Professor Ronald Allen and Michael Pardo
critiqued efforts to explain the fact–law distinction on ontological,
epistemological or analytical grounds. Finding those efforts unavailing, the
authors concluded that decisions to label an issue ‘legal’ or ‘factual’ rest on
purely functional considerations turning on a complex set of variables including
the conventional meanings of the terms, structural relationships among
potential decision-makers, and a distinction between matters of general and
specific import. In this response, it is argued that Allen and Pardo’s critique is
accurate to the extent it addresses the fact–law distinction from a general
jurisprudential perspective, but that it fails to address or explain the
fundamental consistency in the ways judges apply the fact–law terminology in
practice. It is suggested that a pragmatic way to understand how the fact–law
distinction has been invoked in practice is to focus on the types of inferences
required to answer given adjudicative questions. It is concluded that ‘fact’
questions are those questions that, having survived the court’s initial screening,
call for inductive inferences about the transactions or occurrences in dispute,
while all other questions are considered questions of ‘law’.
n their article ‘Facts in Law and Facts of Law’,1 Professor Ronald Allen
and Michael Pardo criticise efforts to distinguish questions of ‘law’ from
questions of ‘fact’ based on the nature of the issue under consideration.
In convincing fashion, they demonstrate that there is no ontological,
epistemological, or analytical distinction between things in the real world that
are ‘facts’ and things in the real world that are ‘law’. Their analysis rests on several
insights: that everything we think of as ‘law’ exists and requires proof through
evidence just like all the things we think of as ‘facts’; that ‘fact-finding’ requires
1 R. J. Allen and M. S. Pardo, ‘Facts in Law and Facts of Law’ (2003) 7 E & P 153.
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