Facing Facts in Legal Interpretation

As EVERY FIRST-YEAR LAW STUDENT soon learns, questions of law are very different from questions of fact. When one is asked, "What are the facts of this case?" it doesn't do to talk about strict liability, or consideration, or the rule against perpetuities. One needs to describe what happened in the world, what events are at issue in this lawsuit. When asked about questions of law, the field of inquiry shifts. One discusses the legal standards to be applied to the case and how they are to be understood, and one stops discussing this particular car accident or the particular words of this idiosyncratic will. Statements of fact are descriptions of events and activities in the world; statements of law are interpretations of legal texts and legal rules. The separation of questions of law and questions of fact has an even greater role outside the classroom. Much of the institutional framework of courts hinges on the distinction. In ajury trial, thejury decides questions of fact while thejudge instructs on matters of law. The division of labor between judge and jury is premised entirely on being able to sort out the two sorts of issues.' By being able to decide the facts of a particular case, the jury retains a substantial check on the powers of judges, or at least so the theory goes.2 Keeping fact and law separate is a political strategy designed to minimize the abuse of power. The division of labor between trial and appeals courts is also premised on a sharp distinction between law and fact. Answers to questions of fact are considered to be virtually fixed at trial, and only issues of law can be raised on appeal.3 Appeals courts, because they do not have the parties present and do not have an opportunity to hear all the evidence presented orally, are thought to be poorly situated to work out what happened and are supposed to limit their review to questions of law in which they have special expertise. Here, too, the law/fact distinction marks out the institutional boundaries of different legal actors, separating the role of the appeals court judge from the role of the trial judge or jury. And the importance of the law/fact distinction does not end there. In the determination of what shall count as precedent, judgments of law carry weight for future cases; judgments of fact generally do not. The idea here is that questions of law transcend particular decisions, while questions of fact are idiosyn