The Fact-Law Distinction

Sepehr Shahshahani, Politics

Wed, 10/03/2018 - 12:00pm
LAPA Conference Room, 348 Wallace Hall
Event Category: 
Graduate Students

RSVP requested:  Click here.

LEGS, or "Law-Engaged Graduate Students," meets during the academic year to discuss a work in progress by one of our Graduate Associates. Academic papers, dissertation proposals, and dissertation chapters have been presented at these meetings, to an audience of fellow graduate students.

Abstract:  "This paper uses game theory to analyze the strategic implications of the procedural rule that appellate courts give more deference to trial courts’ findings of fact (“clear error” review) than to their conclusions of law (de novo review). I show that, given trial courts’ informational advantage over appellate courts and the incentive structure created by deferential fact review, trial judges’ fact-finding will not be consistently truthful. This conclusion suggests a shift of focus from fact distortion by parties or even appellate courts to strategic fact distortion by trial courts, which is subtler than that by litigants and probably more systematic than that by appellate courts. The model shows, moreover, that appellate courts will not adopt consistent rulemaking strategies, instead tailoring their rules to account for the possibility of trial judges’ fact distortion. The rules ultimately set by appellate courts might nevertheless be consistent because the credible threat of rule distortion deters trial courts from the kinds of factfinding that would actually trigger rule distortion. Because unfulfilled threats are not observationally distinguishable from the absence of a threat, it would be natural to interpret rule consistency as a judicial commitment to certain rules, but the model shows that there will be no such commitment. I also explore the strategic underpinnings of fact deference. The analysis shows that, contrary to common intuition in many principal-agent settings, fact deference cannot be persuasively explained as appellate courts’ delegation of discretion to trial courts to induce improved factfinding. Finally, I explore alternative institutional designs that can improve factfinding in the judicial hierarchy. The common idea behind these designs is that, contrary to conventional wisdom, the fact that appellate courts cannot observe case facts as well as trial courts is not a good reason for limiting their powers of fact review. An appellate court that observes facts vaguely may nevertheless learn a great deal about the probability that a trial court’s factfinding is accurate by considering the latter’s strategic incentives. This insight can be harnessed to improve the institutional design of fact review in the judicial hierarchy. I illustrate the model’s conclusions and the importance of the fact-law distinction in the contexts of questionable police testimony, patent claim construction, and the jurisprudence of patentable subject matter."

Sepehr Shahshahani

From Sepehr:  "I am a Ph.D. candidate in the Department of Politics at Princeton University, where I am also an affiliate of the Center for the Study of Democratic Politics (CSDP), the Program in Law and Public Affairs (LAPA), and the Center for Information Technology Policy (CITP).  Before coming to Princeton, I was a litigator in New York and a law clerk to trial and appellate federal judges. My approach as a scholar combines what I have learned as a litigator and law clerk with the social science training that I have received at Princeton.  I seek to be faithful to the values of both perspectives, so I bring rigorous formal and quantitative methods to bear on the study of law in a way that is sensitive to legal nuances.  My main doctrinal focus is intellectual property; I am also drawn to procedure and administrative law by my experience in litigation and interest in economic regulation.  The paper I will present is my job talk paper for the academic law market, so I would particularly appreciate your presence and feedback."