Essays on Decision-Making Authority in the Courtroom

Date of Award

Spring 2021

Document Type


Degree Name

Doctor of Philosophy (PhD)



First Advisor

Ayres, Ian


My dissertation explores how practice, procedure, and the allocation of decision-making authority in the courtroom affect decisional accuracy, efficiency, and legitimacy. It includes a set of theoretical and empirical projects that propose normatively desirable solutions to the problems caused by relying on an entrenched—and, in many ways, antiquated—adjudicatory regime to resolve modern issues of evidence and courtroom epistemology. The first essay, Law, Fact, and Procedural Justice, embarks from a recognition that the distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the United States Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution. Law, Fact, and Procedural Justice therefore seeks to bring theoretical coherence and analytical clarity to the law-fact distinction and the classification of issues. It pushes back against the traditional view that questions of law and questions of fact are categorically distinct. Instead, drawing on procedural justice and legal process principles, the essay argues that an issue is a question of law or a question of fact primarily because legitimacy concerns demand its resolution by a particular decision maker. Through that reconceptualization, the essay’s legal process model offers a number of significant contributions. First, as a descriptive matter, it explains the cause of the jurisprudential turbulence surrounding the law-fact distinction. Second, normatively, it highlights the weaknesses of traditional law-fact model, which enables institutional aggregations of power. Finally, it promises to transform the process of classifying issues, turning that analysis into a simple transparent effort to allocate decision-making authority in a manner that will optimize the legitimacy of adjudication. The dissertation’s second essay, Jurisdictional Elements and the Jury, explores a related issued of courtroom epistemology—do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room? In pursuit of an answer, this essay undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, laypeople improperly transmute their decisions regarding that substantive guilt into determinations regarding supposedly independent jurisdictional elements. That is, the study suggests that laypeople increasingly (and improperly) deem jurisdictional elements satisfied as a defendant’s substantive guilt becomes more apparent. Given that empirical finding, the essay promises significant contributions to the normative literature. For one, it directly raises questions as to whether jurisdictional elements truly constitute a meaningful barrier to federal prosecution, especially when a defendant’s factual guilt seems clear. Of course, a jurisdictional requirement that ebbs and flows based on layperson perceptions of a defendant’s substantive guilt is no jurisdictional requirement at all. Additionally, the project informs enduring debates in courts and Congress. Namely, the essay’s insights about layperson epistemology encourage renewed scrutiny of the optimal balance of decision-making authority in the courtroom. The dissertation concludes with a capstone project. The Living Rules of Evidence begins by acknowledging that the jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and congressmen would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code. The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal space. Although the last half-century has seen material developments in the empirical and normative literatures underlying our evidentiary regime, rulemakers have gone silent. As modern understandings increasingly render the Federal Rules of Evidence anachronistic—and even problematic—there has been no substantial effort by rulemakers to align evidence law with evolving empirical findings or cultural sentiments. Rather, in the words of a prominent judge, evidence law has entered a “dogmatic slumber.” This essay therefore seeks to awaken evidence law. In particular, it advances a novel jurisprudential framework for interpreting and applying the Federal Rules of Evidence. Drawing on prominent jurisprudential responses to other frozen positivist landscapes, the essay encourages judges to take a holistic, progressive perspective when interpreting the Federal Rules of Evidence, one that remains true to text but also appreciates significant developments in the empirical literature and cultural standards of decency. Where the world outside has evolved such that the underlying rationale for an evidentiary rule no longer holds water, “living evidentiary theory” calls on judges to reassume their historic role and craft an optimal evidentiary solution.

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