The Myth of the Law-Fact Distinction
41 Pages Posted: 2 Mar 2017
Date Written: 2003
We consider and reject the idea that there is an ontological, epistemological, or analytical distinction between questions of law and questions of fact. Rather, we contend that the labels “law” and “fact” refer to the allocation of decision-making authority for pragmatic reasons. This allocation is driven by three factors: (1) the judge-jury relationship, (2) standard conventions concerning the meaning of “law” and “fact,” and (3) a distinction between matters of general import and highly specific and localized phenomena.
Keywords: questions of law, questions of fact, punitive damaages, constitutional facts, Seventh Amendment, First Amendment, contracts, torts, patents, appellate review, juries, judicial notice, criminal procedure
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