Law, Fact, and Procedural Justice

• Publication year: 2021

Law, Fact, and Procedural Justice

G. Alexander Nunn

LAW, FACT, AND PROCEDURAL JUSTICE

G. AlexanderNunn^*

Abstract

The distinction between questions of law and questions offact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is "slippery," "elusive," and "vexing." But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution.

This Article seeks to bring theoretical coherence and analytical clarity to the law-fact distinction. It pushes back against the formal view that questions of law and questions of fact are categorically distinct. Instead, drawing on legal process principles, this Article argues that an issue is typically deemed a question of law or a question of fact because legitimacy concerns demand its resolution by a particular decision maker. Through that reconceptualization, this Article's legal process model offers a number of significant contributions. First, as a descriptive matter, it explains the cause of the jurisprudential turbulence surrounding the law-fact distinction. Second, normatively, it highlights the weaknesses of traditional law-fact model, which enables institutional aggregations of power. Finally, it promises to transform the process of classifying issues, turning that analysis into a simple transparent effort to allocate decision-making authority in a manner that will best optimize the legitimacy of adjudication—that will best achieve procedural justice.

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Introduction...........................................................................................1275

I. What Is Law? What Is Fact?......................................................1282

A. The Turbulent Legal Landscape ............................................. 1283
B. (Attempting to) Make Sense of Law Fact Jurisprudence ........ 1287

1. The Traditional Model...................................................... 1288
2. The Consequentialist Model............................................. 1291

II. The Procedural Justice Model.................................................1293

A. Explaining the Model ............................................................. 1295

1. What Is Procedural Justice? ............................................ 1295
2. A Procedural Justice Law-Fact Model ............................. 1300

B. How the Model Informs .......................................................... 1312
C. How the Model Reforms ......................................................... 1318

Conclusion...............................................................................................1323

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Introduction

Ad quaestionem facti non respondent judices, ad quaestionem juris non respondent juratores;¹ judges do not decide questions of fact, juries do not resolve questions of law.² For centuries, this oft-repeated maxim has purported to offer a general division of decision-making authority within the courtroom.³ With equal fervor, courts have championed their responsibility to "say what the law is"⁴ while fiercely protecting the jury's right to decide certain factual issues, particularly in criminal cases.⁵ Corresponding doctrines have also embraced the law-fact distinction. For example, scholars have rightly emphasized that an issue's classification as a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution.⁶

But despite the law-fact distinction's prominent place in the American juridical system—despite its residence in the Constitution itself⁷ —case law fails to provide an answer to a seemingly simple yet critically important question: what distinguishes questions of law from questions of fact?⁸

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At first, the distinction between legal and factual inquiries might seem elementary. Determining whether it was indeed Clarence Earl Gideon who robbed the Bay Harbor Pool Room on the morning of June 3, 1961, is a question of fact.⁹ Whether the sixth Amendment entitled Mr. Gideon to the right to counsel at his subsequent criminal trial is a question of law.¹⁰

But as one works in from those polar extremes, the task of delineating law from fact becomes, to borrow the understated opinion of Supreme Court Justice Byron White, "vexing."¹¹

Consider, for example, the issue of "voluntariness" as it arose in United States v. Barbour.¹² In January 1994, Ronald Barbour drove to Washington, D.C., to assassinate the President of the United States.¹³ After catching wind of his plot, Secret Service agents intercepted Mr. Barbour at his hotel, where they extracted a confession from him in exchange for a promise of mental health treatment.¹⁴ The following day, the agents again visited Mr. Barbour, who was now involuntarily confined at a private mental health facility.¹⁵ During that second meeting, Mr. Barbour agreed to allow the agents to search his apartment and car.¹⁶ Given Mr. Barbour's at-risk mental state, was either his confession or his consent to search "voluntary"? And, more to the point here, is "voluntariness" a question of law or a question of fact?

For the Barbour court it was both. And neither. The Eleventh Circuit, following Supreme Court precedent, gamely declared the voluntariness of a search to be a question of fact;¹⁷ two sentences later, it declared the voluntariness

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of a confession to be a question of law.¹⁸ Curiously absent from the Barbour opinion is any explanation for the differing classifications.

Yet Barbour is far from anomalous in its mystifying approach to law and fact. In truth, it is merely the tip of the iceberg. The Supreme Court itself, for example, has considered reasonability a question of fact in the personal tort context but a question of law in the policing context.¹⁹ It has insisted that issues involving considerations of morality or deterrence value are factual in the criminal arena but legal in the context of assessing punitive damages.²⁰ Without any attempt to reconcile or even recognize its differing treatment, the Court has determined that the unconscionability of a contract,²¹ the appropriateness of an implied price term,²² "actual malice" in a defamation suit,²³ probable cause,²⁴ the "obscene" or "patently offensive" nature of a publication,²⁵ and the effectiveness of counsel²⁶ are to be treated like questions of law subject to de novo review, but issues including malicious prosecution,²⁷ aggravating and

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mitigating sentencing factors,²⁸ ordinary care,²⁹ discriminatory intent,³⁰ and proximate causation³¹ are quasi-factual issues warranting deferential review.³²

At best, then, a holistic examination of the case law leaves one with the impression that varying conceptualizations of the law-fact distinction have become balkanized within different subject matter groupings. Although there is perhaps a discernible test for distinguishing legal issues from their factual cousins within the narrow confines of a specific doctrine, these intra-doctrinal tests are seen to be highly contradictory when viewed in the aggregate. And the conspicuous absence of a trans-substantive framework for distinguishing questions of law from questions of fact ultimately leads one to wonder whether the law-fact distinction actually encapsulates some immutable truth about different types of adjudicative issues or if it is instead, as some scholars suggest, simply a legal fiction.³³

This Article explores the theoretical roots of that question. As is likely now evident, the orthodox, preeminent, and perhaps intuitive understanding sees the law-fact distinction as differentiating between conceptual kinds.³⁴ That is, questions of law are believed to possess certain inherent qualities that are separate and distinguishable from those exhibited by questions of fact³⁵ —legal inquiries are as different from factual inquiries as apples are from oranges. And just as one can easily distinguish apples from oranges by relying on a class of certain reference points (e.g., the fruit's color, taste, and density), one too can

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easily distinguish law from fact, so long as the law-fact classifier is also using the correct reference points. So, on this view, the classification process should be a relatively easy endeavor. To classify an issue, one must simply identify the intrinsic nature or epistemological demands of that issue and, based on that assessment, categorize it as a question of law or a question of fact.

In recent years, however, Professors Ronald Allen and Michael Pardo have led a group of scholars who are increasingly pushing back against the traditional, orthodox notion of the law-fact distinction.³⁶ This new wave of scholarship suggests that the emperor has no clothes; the law fact-distinction is, ultimately, just a facade. Rather than relying on a theoretical line of demarcation to contrast law from fact, courts and lawyers classify issues in a functionalist fashion to achieve certain instrumental ends.³⁷

Until now, most of this consequentialist scholarship has focused primarily on deconstructing the traditional law-fact model.³⁸ If one accepts Allen and Pardo's core notion of law-fact indeterminacy, however, scholarship should also explore novel law-fact models to rival the orthodox accounts. Case law suggests that, rather than ad hoc proclamations in a sea of uncertainty, some constellation of factors is motivating and...