Sepehr Shahshahani (Washington University in St. Louis – School of Law) has posted Fact-Law Confusion on SSRN. Here is the abstract:
“This is a question of fact for the jury.” “That is a question of law for the judge.” Such statements are ubiquitous in our law, and their ubiquity suggests a commonly understood meaning. But what do they actually mean? The answer is not as clear as it might seem. The statements could mean that questions of fact must be decided by juries and questions of law by judges. Or they could mean that questions of fact (law) may be decided by a jury (judge). Or they could signal something between must and may—that questions of fact (law) are ordinarily or usually or presumptively for juries (judges) to decide. What, then, is the connection between the nature of a question (factual or legal) and the choice of decider (jury or judge)? The common catchphrases leave the answer ambiguous.
The purpose of this Article is to clarify that ambiguity in the context of civil cases and to correct the confusions it causes among courts and commentators. The proper understanding of the two catchphrases, I contend, is asymmetric. “That is a question of law for the judge” means that questions of law must be decided by a judge whereas “this is a question of fact for the jury” means that questions of fact may be decided by a jury, which is to say that questions of fact may also be decided by a judge in the appropriate case. Specifically, a judge may decide a question of fact when its answer is sufficiently clear.
A corollary of this thesis is that in American federal civil litigation, there are no questions that are always for juries to decide. Nor, I will show, is there such a thing as a question that is usually for juries. That idea sounds reasonable and is often repeated, but it is in fact dangerously misleading.
By disentangling the issue of the nature of the question (factual or legal) from the issue of who decides it (jury or judge), and by elucidating the proper relationship between the two, I contribute to caselaw and scholarly commentary across a variety of substantive fields. Clearer apprehension of how the nature-of-the-question question affects the who-decides question can help better understand how the Seventh Amendment weighs in on judge-jury allocation. It can improve summary judgment practice in a variety of substantive fields when questions such as ascertaining a person’s state of mind or assessing the reasonableness of a person’s conduct are at issue. It can inform scholarly discourse on patent reform and copyright fair use. It can set Ninth Circuit copyright law straight after decades of ruinous error. And it can help the Supreme Court avoid similar errors in a trademark case to be decided next Term.
Highly Recommended!
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