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Emory Law Journal




The distinction between questions of law and questions of fact 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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Emory University School of Law

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