Questions of Fact in the Practice of Law: A Response to Allen and Pardo's ‘Facts in Law and Facts of Law’

In an article in this journal, Professor Ronald Allen and Michael Pardo critiqued efforts to explain the fact–law distinction on ontological, epistemological or analytical grounds. Finding those efforts unavailing, the authors concluded that decisions to label an issue ‘legal’ or ‘factual’ rest on purely functional considerations turning on a complex set of variables including the conventional meanings of the terms, structural relationships among potential decision-makers, and a distinction between matters of general and specific import. In this response, it is argued that Allen and Pardo's critique is accurate to the extent it addresses the fact–law distinction from a general jurisprudential perspective, but that it fails to address or explain the fundamental consistency in the ways judges apply the fact–law terminology in practice. It is suggested that a pragmatic way to understand how the fact–law distinction has been invoked in practice is to focus on the types of inferences required to answer given adjudicative questions. It is concluded that ‘fact’ questions are those questions that, having survived the court's initial screening, call for inductive inferences about the transactions or occurrences in dispute, while all other questions are considered questions of ‘law’.