All mixed up about mixed questions.

• Author: Warner, Randall H.
• Position: Law and fact

1. INTRODUCTION

   "Elusive abominations." (1) Among the countless opinions that wrestle with so-called "mixed questions of law and fact," one from the Court of Claims best summed up the problem with these two words. The Ninth Circuit was more direct, if less poetic, when it said that mixed question jurisprudence "lacks clarity and coherence." (2) And as if to punctuate the point, Black's Law Dictionary offers a definition that is perfectly clear and perfectly circular: "A question depending for solution on questions of both law and fact, but is really a question of either law or fact to be decided by either judge or jury." (3)

   "Mixed question" is, like "question of fact" and "question of law," a label given to issues on appeal for purposes of determining the standard of review. But unlike those well-defined categories, "mixed" has become a sort of catch-all, an amorphous box into which courts place any issue or combination of issues that cannot neatly be labeled law or fact. (4) Hence, the lack of clarity and coherence. The mix-up about mixed questions exists because courts try to apply a single "mixed question" standard of review to a variety of issues that are analytically quite different from one another.

   Some questions courts call "mixed" involve determining whether a given set of facts falls within a known legal standard or definition, an exercise often described as "law application." (5) Some involve judging a person s conduct by determining whether it was "fair" or "reasonable." (6) Still other questions are considered mixed because they consist of two or more different issues jumbled together. (7) Courts have been unable to agree on a single standard by which to review all mixed questions because the term means too many different things. (8) The mixed question label, while convenient, fails to advance the standard-of-review ball very far. (9)

   This article is an attempt to unmix the mixed questions and discern a set of principles by which courts can consistently categorize and review questions that are neither purely law nor purely fact. (10) While others have recently argued that there is no analytical distinction between the categories of law and fact, (11) maintain that there are several distinct categories of judicial issues, (12) each of which must be approached differently on appeal. As to some of these categories, there is little controversy about the standard of review. Others require more in-depth analysis and, in some instances, a policy choice about which judicial actor is best equipped to decide them. And when two or more different issue-types are intermingled, they must be distinguished and analyzed separately. Lumping them together under the "mixed question" label, and then ascribing a standard of review based solely on that label, is a recipe for confusion.

   This can sometimes be a complex undertaking, certainly more complex than calling "mixed" any issue or group of issues that is neither purely legal nor purely factual. But if a little complexity is the price of clarity and consistency, it is a price worth paying.

2. STANDARD OF REVIEW AND THE LAW/FACT DISTINCTION

   The whole reason for labeling a question "law," "fact," or "mixed" is to determine the standard of review on appeal; thus, any attempt to understand mixed questions must begin with standard of review. Standard of review is best understood as a principle of judicial management. It is about dividing decisionmaking authority among different parts of the judiciary. (13) For a variety of reasons, our system leaves some decisions in the hands of juries, others with trial judges and still others with appellate judges. Of course, appellate courts have the last word on all issues. But the standard by which they review each issue--the degree of deference they will give to another decisionmaker's resolution--varies depending on the nature of the issue.

   The bedrock principle is that questions of fact are best determined by a jury of lay people. There are several reasons for this. First, juries are in the best position to discern the truth, having heard testimony first-hand along with all the eye-twitches, sweaty brows, pregnant pauses and other non-verbal cues that accompany it. Juries also get to see the physical evidence in person. All the appellate court gets is a cold record. (14) Accompanying these concerns is the notion that twelve lay people are better qualified to determine whether their peers are telling the truth than are legal professionals. (15)

   There is also a deeply-rooted tradition holding that we are entitled to have our conduct judged by peers. Note that this idea has nothing to do with fact-finding or truth-determining. Even if we could invent an error-proof lie detector test, we still would use juries to judge things like whether a party exercised due care or was reasonable in relying on a representation. When the jury makes such a determination, it is not being asked to decide what happened, though it may make that determination as well. It is being asked to judge another person's conduct or decisions according to community standards. We often call such determinations "questions of fact," even though they involve a much different mental exercise. (16)

   Next, there is a concern for managerial efficiency. Even if we thought three-judge appellate panels were better equipped to determine the truth than a trial judge or a jury, we might still relegate that task to lower courts because there simply are not enough appellate judges to go around. And if there were, why would we even bother having a lower court? We could have just one level of court that would decide all issues: law, fact, or otherwise.

   Primarily for these reasons, our system leaves fact-finding and certain conduct-judging to juries. Those same decisions are relegated to the trial judge in bench trials even though, of the considerations discussed above, only efficiency and the ability to see and hear evidence first-hand applies equally to juries and trial judges. Those considerations are strong enough that findings of fact are reviewed with deference regardless of whether they were made by a trial judge or a jury.

   In contrast to these factual matters are questions of law, which appellate courts review without deference, or "de novo." Questions of law involve the creation of rules or the interpretation of existing rules (arguably an act of rule-creation in itself). Appellate judges have the ultimate authority over these issues for a number of reasons. For one, judges are more expert in the law than juries, because knowing and understanding law is what they are trained to do. Appellate judges presumably are selected for their legal expertise, and deciding legal questions is what they do all day. Appellate judges also review a wide range of cases and so have the advantage of a broad perspective. And in contrast to trial court judges, who make lots of decisions each day, often without time for extended reflection, appellate courts have a greater opportunity to research, analyze, discuss, and debate important legal issues.

   Standard of review is therefore the legal principle that makes our tiered system of courts work. Those tasks that are relegated to appellate judges are reviewed de novo. Tasks relegated to juries and trial judges are reviewed deferentially, meaning that an appellate court will override the decision only if it is very, very wrong. Courts use various terms to describe a deferential standard of review: clearly erroneous, manifest error, unsupported by substantial evidence, abuse of discretion, to name a few. In some instances, there are subtle differences among these standards, but those differences are not material here.

   There is nothing inherent or immutable about the way our system divides decisionmaking authority. The idea that judges and juries should perform separate functions owes more to bureaucratic principles than to moral or political philosophy. But pragmatic does not equal unprincipled. (17) Though our judicial system divides decisionmaking authority for practical reasons, it still must do so based on a set of rules that can be consistently applied. (18) This is why mixed question jurisprudence can be so maddening. The lack of clarity and consistency regarding mixed questions leaves the impression that courts can choose whatever standard of review they want depending on the outcome they wish to achieve. (19)

   In a 2003 article, Allen and Pardo argue that the law/fact distinction is a myth. (20) They claim that there is no reasoned analytical distinction between law and fact because legal issues involve a factual determination of what the law is. (21) As should be clear from Section IV below, I disagree with this proposition; there are real differences among the various issues courts confront, and these differences are consistent and discernable enough that courts can formulate different standard of review rules to govern different categories of issues. (22) But the disagreement may turn out not to matter much. Allen and Pardo concede that there may be good practical reasons to maintain the "legal fiction" of the law/fact distinction. (23) If that is what it takes to derive a consistent set of rules to govern standard of review, it's good enough for me.

3. THE PROBLEM OF MIXED QUESTIONS

   Noting the "vexing nature of the distinction between questions of fact and questions of law," the Supreme Court in Pullman-Standard v. Swint (24) found substantial disagreement among circuit courts on whether mixed questions are reviewed de novo or deferentially. (25) State courts have fared no better. One can find cases from all over holding that mixed questions are reviewed de novo, (26) and others holding that they are reviewed deferentially. (27) A split in authority alone would be no cause for alarm, for jurisdictions divide all the time on important legal issues. But this is not a division based on jurisprudential differences. We do not find...