Haley Proctor (University of Notre Dame – Notre Dame Law School) has posted Law, Fact, Form, and Function on SSRN. Here is the abstract:
The task of parsing mixed questions of law and fact has “vexed” judges, practitioners, and scholars for generations. We persevere because “who decides” depends on it, and so much else depends on “who decides.” The consensus approach treats the problem as one of allocation: who is better positioned to answer this question? If the law-declarer is better suited, treat the question like one of “law.” If the factfinder is better suited, treat it like one of “fact.” Classification becomes, at most, a vestigial waypoint on the road to optimal institutional design.
This Article identifies a different approach: one that treats mixed questions like questions of fact. This approach is hiding in plain sight. Juries answer mixed questions all the time, and we treat their answers as “fact.” Today, many are inclined to regard the notion that answering mixed questions is “factfinding” as a polite fiction subject to correction when the rule of law demands it. On the contrary, treating answers to mixed questions as “fact” reflects a commitment to the notion that “law” exists outside of the mind of the decision-maker who applies it.
This Article begins by examining the reasons it can be difficult to talk about, much less distinguish, law and fact. It then identifies two approaches to drawing the line between them, in the domain of “mixed questions.” Finally, it suggests that there are formal legal limits on functional reallocations of authority that modern procedural doctrines fail to consider.
Highly recommended.