The Political Spectrum

I like to think that the radio silence on my part has been deafening. My legions of fans may have been wondering: "Is life as a first year associate that busy?" And I answer: "Yes. Yes, it is."

What prompts this return is a concurring 3d Cir. opinion from yesterday (to my attention from How Appealing, via co-clerk NMR). The op., which starts on p. 30 of the .pdf file, addresses a question that perplexed me as a law clerk: what is a question of fact and what is a question of law? This question did not perplex my co-clerks, so much as it annoyed them; it annoyed them because I was always harping on it.

The question is an important one, because it sets the standard of review. (I'm not sure district judges ever have to face the issue, though they might have to in their appellate or quasi-appellate capacity over bankruptcy judges and magistrates.) Judge Ambro's suggestion follows:

…However, a practical test I propose for determining whether a question is one of fact, of law, or of both fact and law, is as follows. A question of fact can be answered solely by determining the facts of a case (without any need to know the law relevant to the case). A question of law can be answered solely by determining what relevant law means (without any need to determine the facts of a case). A mized question of fact and law can only be answered by both determining the facts of a case and determining what the relevant law means.
For example, imagine that a man is appealing his conviction under a law that states "it is a crime to be tall." What kind of question is: “Was the trial court correct to find the man ‘tall’?” Can we answer it solely by determining the facts of the case? No, because even if we know the fact that the man is five feet ten inches, we do not know if he is “tall” in the sense that Congress intended the word “tall” to mean. Can we answer it solely by determining what the relevant law means without knowing the man’s height? No, because even if we know that the statute defines “tall” as “six feet or taller,” we do not know how tall the man is. Thus, we have a mixed question of fact and law. Once we know the facts of the case (that the man is five feet ten inches tall), and what the relevant law means (it is a crime to be six feet tall or taller), we can answer “no” to the question “Was the trial court correct to find the man 'tall’?”

Judge Ambro's solution is simple, straightforward, and completely useless.

A couple of observations. First, it presumes that Congress actually had a set of facts in mind that they wished to regulate. Of course, that is not true. (Not only do the members of Congress not have anything in mind when they legislate, they usually don't have anything in mind at all. Do people realize how stupid legislators are?) But I don't suppose this fiction works any more havoc here than it does in other places, so I'll let it pass.

Second, note the way Ambro, J.'s, distinctions are worded: Facts can be determined solely on the basis of facts. Law can be determined solely on the basis of law. Somehow, unenlightening. Oh, and for a mixed question of law and fact you need to know both the law and the facts.

More importantly, it is useless, because it produces the result that there are few pure questions of fact, and few pure questions of law. There would still be some cases in which a court had a pure question of law. So, for example, if a defendant claims "Congress' statute, enacted on such-a-date, repealed the statute under which I was convicted." The prosecution responds "No, it didn't, that was a scrivener's error." And then the district court, and court of appeals, have to decide the "pure" scope of the amendatory statute. But the vast majority of cases wind up mixed questions, in which the judge needs to parse out the standards of review: the question which was supposed to be resolved by the first round of distinctions. So we're back at where we started.

Very seldom does a legal question play as stark a role as in my repealed (or not?) statute hypothetical. It is more often the case that a judge speaking about "pure" law is -- unless he is quoting -- offering an improper advisory opinion. Judges are free to quote to their hearts' content; but unless the facts of a case force them to address an issue, what they say about law isn't worth the paper it's written on. Which leads me to a segue. (Don't you wish blogger had footnotes?) I tend to fall on the "conservative" side of legal issues. But there is a strain of that side that bugs me: the harping about how judges should apply the law without concern for the facts. This is simply silly. Judges decide cases, and you can't have cases without facts. Law is, in many ways, a second-order phenomenon that never actually happens (or can never be observed) within one case. Instead, you know the law when you observe over a sufficiently long period of time how judges dispose of fact situations. But, then again, I think all regulatory statutes should be repealed and we should return to common law regulation. (Don't you wish blogger had footnotes?)

But the root of my opposition to Ambro is based on a lesson that it took me too long to learn. The lesson is this: When you think a social form produces an unintended consequence, ask yourself if that was really the intended consequence all along. There are many seemingly-fortuitous consequences that were really intended from the get-go. Here's an example. (Don't you wish blogger had footnotes?) Congress passes a statute guaranteeing that, if you represent a veteran, you will receive a $100 fee. Wow, you might first think, Congress is making sure there are funds so that veterans have attorneys. They must want to increase the number and quality of claims on veterans' behalf. But the opposite happens (and was intended to happen): attorneys don't work for $100, so veterans wind up without representation, so there are fewer claims on the government.

Applying that lesson here, we should start with the last step: that certain aspects of a district court's decision can be easily altered on appeal, and certain aspects cannot. My conclusion is: appellate judges do not apply de novo review once they determine an issue is a legal one. Rather, they decide an issue is a legal one so that they can review de novo. I don't think this is done in a devious fashion (necessarily). Instead, it is in large part based on the hierarchical structure of judges. Consider 100 people making decisions; despite written instructions, there is going to be a lack of uniformity. But if the decisions of those 100 people are filtered through 10 reviewers, that lack of uniformity is decreased. The parts that should be uniform are what we deem to be legal questions, and are the questions that are 10 hypothetical reviewers are most free to correct. But the parts that need not be uniform (because the facts of cases differ) are the ones that the 10 people don't really care to alter.