304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)

Oh no, not Erie! It seems like only yesterday that my Civil Procedure professor was screeching in his high-pitched, whiny, ear-piercing voice: “read to the end of the line, Mr. Heller, read to the end of the line!” Of course, the joke’s on me, now that I too am a law professor. I can’t tell you how many times I’ve screeched the same words.


Why, you ask, should I torture myself with those long buried memories? Because I am about to embark on a brief discussion involving the distinction between matters of law and matters of fact.

From time immemorial, the common law has made clear that, except in bench trials, matters of fact are determined by the jury. But matters of law are sacrosanct – they are the exclusive dominion of the judge who, notwithstanding the extent of his legal knowledge, background or expertise, is the irrefutable expert on matters of law.

Is it time to reconsider?

In recent blogs, I expressed my concern that juries may not be qualified to determine facts arising out of digital forensics or toxic tort litigation. In those cases, it seemed clear to me that Judges are better equipped at processing the complex scientific facts and data that often form the basis to the litigation.

But what about those cases that have similarly complex concepts but are actually questions of law? For example, in Nationwide Transport Finance v. Cass Information Systems, Inc., 523 F.3d 1051 (9th Cir. 2008), the plaintiff finance company intended to introduce the testimony of a financial expert witness to explain the application of the UCC to the factoring industry. In response to the defendant’s motion, the trial court struck all portions of the expert’s report discussing “the law and its application,” but not those portions discussing “industry conditions, standards, and practices” in factoring where no law was cited or applied.

In other words, an expert could testify about the practices of the industry regarding the applicability of the UCC to the factoring industry, but as for whether the UCC was legally applicable (as opposed to factually applicable) to the factoring industry, the judge was the sole arbiter of this question.

Not insignificantly, the answer to that question could all but resolve the lawsuit. But the court held that the question of its applicability is not one for the jury to determine, even after they heard the testimony of legal experts on the UCC. As it is a question of law, it is the judge and only the judge who must determine its applicability. Not based upon expert testimony, but more likely upon the legal research done by the judge and her law clerk.

As unsatisfying as this approach may be, it may still be the best alternative.

If we leave the decision in the hands of the jury, would they also be permitted to determine if the statute is unconstitutional? And what about their “legal reasoning?” While a judge is expected to have a legitimate legal basis to his interpretation of the law, juries are basically a “thumbs-up/thumbs-down” proposition. Other courts can use a judge’s legal reasoning in reaching their own conclusions in similar cases. Can our legal system rely upon statutory interpretation as if it were a true/false question?

Maybe the answer is for judges to have a legal hearing rather than simply relying upon motions, briefs and oral arguments from other attorneys? Perhaps the best solution is for the judge to retain his position of authority, while relying upon the testimony and analyses of other expert authorities? Even if those experts happen to be attorneys.

Of course, that doesn’t answer the question of where the law ends and the facts begin. It remains hopelessly muddled and may never be cleared up. But I never promised that I had all the answers. If even the great Louis Brandeis couldn’t clearly, concisely and conclusively answer the question in his landmark opinion in Erie v. Tompkins, who am I to presume to do better?

By: Ian Heller,  Attorney at Law