81 Pages Posted: 30 Apr 2022 Last revised: 13 Mar 2023

See all articles by Scott Rempell

Scott Rempell

South Texas College of Law Houston

Date Written: December 1, 2022


Factors guide and facilitate decision-making. When they are not formalized, factors can exist as probabilistic units of inquiry that describe considerations which have been or should be relevant. Even though factors are foundational and ubiquitous units in law, scholars have not fully explored their properties and functions. This article provides a comprehensive assessment of factors and the extensive role they play in legal discourse. Factors are goal-oriented categories nesting within broader classification structures. The surrounding taxonomic framework orients factors’ generality levels and inter-factor relationships. A factor’s internal operating structure can take many forms, including dichotomous orientations, those on more of a spectrum, and hybrid forms that integrate operational features of both. A factor can simply contribute to a decision, but it can also be irrelevant or dispositive of the outcome. Multi-factor operations can involve a limited number of factors or all of them. Each operation can take on aggregative or comparative qualities or a combination of these qualities. Moreover, some or all of the intra- and inter-factor operations could have a fixed or suggestive sequence. Collectively, these potential properties and attributes embody the broad concept of factors. A greater understanding of this concept contributes to the numerous theoretical and pragmatic undertakings that are premised on the workings of factors and the attributes of multi-factor inquiries.

Keywords: factors, elements, rules, jurisprudence, legal tests, taxonomy, classification, cognitive psychology, legal reasoning, induction, synthesis, precedent, legal realism, totality of the circumstances, balancing, thresholds, presumptions, schemas, context, frame of reference, legal writing

JEL Classification: K1, K10, K19, K3, K30, K4, K40, K41, K42, K49

Suggested Citation

Rempell, Scott, Factors (December 1, 2022). 70 Buff. L. Rev. 1755 (2022), Available at SSRN: https://ssrn.com/abstract=4095435 or http://dx.doi.org/10.2139/ssrn.4095435

Scott Rempell (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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