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Questions Of Fact In The Practice Of Law: A Response To Allen & Pardo's Facts In Law, Facts Of Law, Paul F. Kirgis

Faculty Journal Articles & Other Writings

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 …