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Ring v. Arizona, Death penalty, Capital punishment


Constitutional Law | Criminal Law


When is a normative question a question of law rather than a question offact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law cannot be explained by traditional accounts of the law/fact distinction and has fueled recent skepticism about the possibility of gleaning a coherent principle from judicial rulings.

This Article clarifies a principle implicit in the settled classifications. I suggest that judicial practice is consistent: it can be explained by the distinction between normative questions that are convention-dependent and those that are convention-independent. Convention-dependent normative questions, or those that turn essentially on facts about our social practices (roughly, what we do around here) are reasonably classified as questions of law. By contrast, convention-independent normative questions, which turn instead on fundamental moral norms concerning what persons are owed simply on account of being persons, are properly classified as questions of fact. This principle, echoed in recent holdings, clarifies law/fact classifications in such diverse areas as torts, contracts, First Amendment law, and criminal procedure.

The principle also promises to resolve a looming constitutional controversy. In Ring v. Arizona, the Supreme Court held that all factual findings that increase a capital defendant's sentence must be decided by the jury under the Sixth Amendment. Two recent denials of cert. suggest that members of the Court wish to revisit, in light of Ring, the constitutionality ofjudges deciding whether a criminal defendant deserves the death penalty. Applying the principle to Ring, I argue that the question of death-deservingness is a convention-independent normative question, and for that reason should be deemed a factual question for the jury.


This article predates the author's affiliation with Cornell Law School.