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Tuesday, May 26, 2020

The Importance of the Fact-Value Distinction: A Reply to Kleinfeld

In my prior post, I argued that scholars should better distinguish the descriptive and normative parts of their arguments. But what if there’s really no good distinction between the two? More broadly, what if there’s no such thing as moral normativity?

Joshua Kleinfeld takes such considerations to show that the fact-value distinction is not a sharp one. He bemoans “the rigidity with which contemporary academic legal culture invokes the fact-value distinction”[1] and believes it quite fine to offer arguments that blend the descriptive and the normative. It’s not the case, he argues, that “every well-formed claim in the world could be set straightforwardly on one side of the ledger or the other like so many zeroes and ones.”[2] Indeed, he finds it ironic that law professors insist on a fact-value distinction but then regularly fail to honor it:

Is the corrective justice view of tort law, which holds that the doctrinal structure of tort law reflects ideals of corrective justice, normative or descriptive? Well, both; it is a sort of idealizing interpretation. What about the economic view that regards tort law as an instrument for efficient resource allocation? Again, the view is at once normative and descriptive: it is an interpretation of the existing legal system with critical force to the extent the system diverges from it. What about a view of contract law as the legal effectuation of promise-keeping values? The interpenetration of normative and descriptive ideas in that view is impossible to unravel — either in principle (because the two categories are not truly separate) or in practice (because the two categories get so entwined in the course of argument) or both. When a lawyer argues that the Establishment Clause prohibits school-sponsored prayer in public schools, is that a descriptive claim about what the Constitution does mean or a normative one about what it should mean? What about when a lawyer argues that a contract’s reference to “reasonable efforts” means whatever efforts are standard in the industry rather than all cost-justified efforts? Entanglement is a normal feature of human understanding in general, but it is, if anything, particularly pronounced in law. Law is interpretive, and interpretive enterprises exhibit entanglement in extreme form.[3]

I have three responses. First, even if there are borderline claims that blur facts and values, they do not defeat the distinction altogether. Many statements appear to fall quite squarely on one side or the other. Many others, even if initially ambiguous, can be clarified or broken down into easily distinguished components. The person who reports seeing a parent hit a child “cruelly” can likely describe what she observed in factual terms (for example, the parent hit the child three times across the face) and separately describe her moral evaluation (for example, it grossly exceeded the bounds of appropriate parental discipline). Indeed, when confronted by sometimes vague distinctions, it becomes especially important to be clear and precise about their contours.

We face a similar challenge when distinguishing statements of fact not from morally normative statements but from prudentially normative statements. Surely one could make arguments similar to Kleinfeld’s: can we really draw a bright line between our observations of events and our own self-serving biases and best interests? Aren’t claims about how things are often entangled with views about how we would personally like them to be? As a matter of human psychology, we may indeed entangle beliefs about facts and beliefs about our best interests. Still, the standard scholarly response is to do what we can to loosen the entanglement or at least disclose matters that interfere with the clarity and objectivity of scholarly claims. In other words, entanglement risks are real; the solution is to disentangle all the more vigorously.

An examination of Kleinfeld’s legal examples reinforces my claims that legal scholars are too ambiguous. If a scholar states that “tort law in X jurisdiction follows principles of corrective justice,” we should expect the scholar to explain whether she is simply describing current doctrine, asserting what doctrine ought to do, or making both claims. There are some rather easy test questions to ask, for example: “If the jurisdiction made major statutory changes that explicitly make economic efficiency the goal of tort law, would you still claim that tort law in this jurisdiction follows principles of corrective justice?”

Kleinfeld also claims that it is “impossible to unravel” the descriptive and normative components of the view that contracts effectuate promise-keeping values.[4] In fact, we can simply ask scholars what they mean and they can usually explain. Or consider his rhetorical question, “What about when a lawyer argues that a contract’s reference to ‘reasonable efforts’ means whatever efforts are standard in the industry rather than all cost-justified efforts?” This is precisely the sort of question where the distinction between facts and values is easy to make: are we supposed to resolve what “reasonable efforts” are by observing what people actually do in some industry or are we supposed to include value considerations in determining what is cost justified? None of these issues seem impossible to unravel. Sure, there may be ambiguities at the margins. Indeed, we always have some uncertainty when interpreting what others mean. But the solution is to make our claims clearer, not to give up on precision.

Second, if it turns out that the fact-value distinction isn’t just a little vague but is fundamentally incoherent, then all of normative scholarship is in jeopardy. If people believe that there is no general distinction between descriptive and normative claims, then what do they mean when they tell us we ought to do something? There surely are deep and important questions about what this whole “morality” thing is and whether we can make sense of it. But once you’ve gone down the road of writing morally normative scholarship, you will generally be interpreted as accepting the existence of moral normativity. Put differently, if you are making morally normative claims while denying the fact-value distinction, tell us why your claims should be treated as anything more than glowing pixels or toner on paper that have no purchase on how we ought to behave. 

Third, while I’ve dipped a toe into the debate about the fact-value distinction, my overarching claim aims to be largely agnostic about substantive debates in law and philosophy. What matters is not so much whether there is a good distinction between descriptive and normative claims but rather how we are to understand the claims that scholars actually make. In our efforts to interpret scholarship, we must recognize that scholars sometimes intend to make factual assertions, sometimes intend to make value assertions, and sometimes simply write ambiguously because they aren’t carefully attending to the differences. We can, however, seek to clarify what scholars mean, even if we are all mistaken in believing that there is a fact-value distinction. If a scholar writes about unicorns, we can still query their beliefs about unicorns. Failing to do so would fail to understand their meaning.

Returning to the real world, when scholars say that the failure to obtain affirmative consent to sex constitutes rape, they may mean that a judge will find that to be the case or that a judge should find that to be the case. Even those who doubt the existence of moral normativity can still admit that scholars mean different things when they speak normatively as opposed to descriptively. If we aim to understand each other, we ought to bring such meanings to the surface no matter what we ultimately take to be true.

Kleinfeld and I agree on several points. We both believe there is a fact-value distinction and that it addresses something important,[5] though we likely disagree over just how fuzzy the distinction is. We also agree that scholars regularly mush together claims about facts and values. Kleinfeld believes that legal scholars rigidly insist on a fact-value distinction that they regularly refuse to honor, while I believe that legal scholars neither insist on the distinction nor honor it.

Our central difference, though, is about how scholars ought to behave in light of the imperfection of the fact-value distinction. Kleinfeld seems quite comfortable with the ambiguity, while I argue that even if there are tough cases along the fact-value continuum, scholars should be as clear as reasonably possible about their meaning. And I believe there can be real benefits when scholars make their claims more precise.

       [1].   Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 Harv. L. Rev. 1485, 1534 (2016).

       [2].   Id.

       [3].   Id. at 1535–36 (footnotes omitted).

       [4].   Id. at 1536.

       [5].   Id. at 1536 (footnote omitted) (“My point is not that the normative/descriptive distinction is altogether confused or meaningless (though some distinguished philosophers think it is). I actually think the distinction gets at something important and there are deep reasons why contemporary intellectual culture is fixated on it. My point is that the nature and scope of the distinction is much more disputed and complex than one would think from the way it is often treated in the legal academy.”).

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Posted by Adam Kolber on May 26, 2020 at 01:30 PM in Adam Kolber | Permalink


Interesting, Asher. I don't think I know Marks well enough to get too deep in the weeds here. But here's a thought: Sometimes things do fit together in ways that are conceptual and non-morally-normative. As in math or science, we might find some theory of the law to be simple, elegant, usefully explanatory, able to fit the relevant data, and so on. So I do think people can make conceptual claims that are not morally normative. And putting aside things like fitting the relevant case data, you could say that they are not especially empirical.

I think I'm happy to allow that there could be empirical claims, normative claims, and conceptual claims. But relating back to some remarks Re'em Segev made on the prior post, without some connection to some kind of normativity, it's not obvious why conceptual claims should pull us to change the law or our behavior. So conceptual claims may be interesting in their own regard, but they may not occupy a vast portion of legal scholarship when they are morally inert. Oftentimes, rules that are simple and elegant are also easier to learn and apply, so conceptual claims will often have a quick link to normative claims.

Posted by: Adam Kolber | May 27, 2020 6:24:41 AM

As I say, I think my understanding of Marks is a bad idea, so no, I don't mean that my understanding is most coherent with moral intuitions or procedural justice. As for what I do mean, I'm not quite sure and I think this muddledness isn't unusual; what does anyone, of the great many people who say such things, mean when they make claims about what Chevron's really about when anyone can see that Chevron as actually practiced by courts is about five or so different things, several of which aren't quite reconcilable?

As I suggested, though, I think my understanding makes sense of Marks's result, is more consistent with the admittedly extremely ambiguous two or so relevant sentences of the opinion than some other explanations, and is more consistent with the law of precedent outside Marks than other understandings; for example, we don't usually think dissents play any role in constructing binding precedent, so it would be odd if we deduced what a Marks holding was by plotting an opinion's relationship to the views of dissenters and dinged it for not being close enough in some logical space to their views to serve as a "median rule" whose application would always carry the day in any hypothetical caucus of the participating Justices in a fractured case. So partly I'm claiming that if you apply pre-Marks law on precedent, and take Marks's innovation as a given to the degree you have to to take its result and reasoning seriously, you're going to end up with my version of Marks, and that if you assume Marks didn't really upend the law, my understanding is the law.

These seem like pretty standard coherentist moves that people fussing with doctrine make all the time, but they do beg the question whether Marks really is (or should be) coherent with pre-Marks law. Perhaps some normative preference for coherence or the content of pre-Marks law is being smuggled in here; perhaps it's my understanding that, as a descriptive matter, our legal system prefers interpretations of ambiguous doctrines that cohere with existing related doctrines, so the best way to predict how courts will read ambiguous doctrines is to give them a coherentist account. As it happens, though, courts haven't, at least not universally, gone to much trouble to give such an account of Marks, so that may be wrong -- or maybe it's generally true and courts are just confused about how to be good coherentists in this instance. But suppose that last is the case and I describe Marks as I do; am I making a descriptive claim or a very prosaic normative claim that courts ought to unconfused, follow their normal practices and square Marks with the larger body of law on precedent? Or what if it turns out that it's the case, and I believe it's the case, that all sorts of niche doctrines don't cohere very well with the larger bodies of law of which they're a part? What kind of claim am I making then?

There is another sense in which my view is about coherence; Marks talks about following the "narrowest" opinion in the majority, and it seems to me that some understandings of "narrow" are either incoherent muddles, like the concept of "being yourself," or have nothing to do with narrowness. Only my approach has determinate content and identifies a single opinion that can sensibly be called narrow. Again, though, it isn't obvious from Marks itself, and it certainly isn't true of post-Marks practice, that Marks contains a determinate rule or even a rule that has anything to do with narrowness in an unconfused sense. So what is going on here? Possibly a normative, even aesthetic, preference for rules over standards, for formalism, for reading opinions to mean more or less what they literally say; perhaps I fancy that I'm following actually existing practices of doctrinal interpretation. I genuinely don't know why I'm doing what I'm doing, but in any event, I'm not describing Marks as applied on the ground.

Posted by: Asher Steinberg | May 27, 2020 3:15:13 AM

Asher wrote: "Whatever do I mean, then, when I say that my understanding of Marks is what Marks is really about; in what world does this "real" version of Marks subsist? Well, I'm actually not sure, but I suspect I think that given the fact of the undertheorized Marks decision, its result, and the small bit of reasoning in the opinion, along with other aspects of our practices concerning precedent, what I think Marks is about is the most coherent account of it. I'm not entirely sure whether you would class this as descriptive or normative or how it should be classed."

This is a very interesting topic. Of course, I can't tell you what you mean. But the second to last sentence suggests that you think your account of Marks is the most coherent. Coherent with what though? Our moral intuitions? A simple way of applying rule? A procedurally just compromise? So there are different things you can mean, and we'd want to tease that out. If it's coherent in the sort of way mathematics is coherent, then you may have discovered a rule that's easy to apply and to teach to people, but that doesn't mean that it's just or morally appropriate. On the other hand, if you mean it coheres with intuitions about political morality or the like, then it may be morally normative.

So it depends on the fuller story you'd give, and you can test out your views in various ways: For example, if it turned out that some other interpretation of Marks were proven to produce better results, would you stick to your original interpretation? What if the Supreme Court interpreted Marks in a way that was inconsistent with your view. Would that affect your claim about what is most coherent? These are the sorts of thought experiments that could help tease out the details of what you may have in mind about coherence. Thanks for your contribution!

Posted by: Adam Kolber | May 26, 2020 10:25:25 PM

What about what Dan Priel, in this paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3480255), calls conceptualist claims? So for an example of what I think he would call a conceptualist claim, people like me who think we really get the Marks doctrine will often make claims about what Marks is "really" about, how Marks really works, dismiss people who say Marks is very confusing or who do Marks a certain way we think wrong as people who just don't get Marks, etc. You can find similar sorts of claims about many doctrines. These look like descriptive claims, and I actually think that Marks, as I understand it, is half-wrong, so they certainly aren't normative claims about what I think the law of precedent should be. But my account of Marks isn't too consistent with how it's been applied either; there really are several theories of Marks in the lower courts, the Supreme Court has never adopted any one of them, mine can perhaps only be found in D.C. Circuit opinions and a few analytically rigorous opinions elsewhere. Whatever do I mean, then, when I say that my understanding of Marks is what Marks is really about; in what world does this "real" version of Marks subsist? Well, I'm actually not sure, but I suspect I think that given the fact of the undertheorized Marks decision, its result, and the small bit of reasoning in the opinion, along with other aspects of our practices concerning precedent, what I think Marks is about is the most coherent account of it. I'm not entirely sure whether you would class this as descriptive or normative or how it should be classed.

Posted by: Asher Steinberg | May 26, 2020 7:10:47 PM

Thanks, Asher. I say a bit about Dworkinian views in the draft right before I get to the Kleinfeld portion. Here's a taste:

"After a judgment of fit has been made, Dworkinians will try to identify a principle that puts the law in the best light from a moral perspective. Judges should consider what decisions “give voice as well as effect to convictions about morality that are widespread through the community.” Part of what judges should consider are empirical facts—the values of a community and how decisions will be perceived in light of those values. And part of what they are to consider, Dworkin tells us, are their “more substantive political convictions about the relative moral value of [different] interpretations.”43 So even when following Dworkin’s recommended approach, some parts of the analysis are principally empirical and some principally value oriented. Either way, we all benefit when the analysis is broken down into descriptive and normative parts."

So, the short answer is, I think even Dworkinians have incentives to be clear about the empirical and normative parts of their claims. But you're right that I can't give a one-size-fits-all recommendation, except to recommend that scholars be more explicit about the descriptive and empirical parts of their claims. Thanks again!

Posted by: Adam Kolber | May 26, 2020 6:24:13 PM

I'm pathetically rusty on legal theory, but does your distinction not beg the question of the correctness of a positivist approach to jurisprudence and uncorrectness of a Dworkinian approach? Would Dworkin not say that, as a legal fact, the law on some judicially unsettled question is already x because it should be x? Perhaps if you want to be truly agnostic about debates in law and philosophy, you should distinguish between different kinds of legal facts, different in virtue of what makes them legal facts.

Posted by: Asher Steinberg | May 26, 2020 5:03:54 PM

Here link to the:

opinion of the Supreme judicial court of Massachusetts, in the case mentioned, yet, not from there I have cited ( but lower court). Here:


Posted by: El roam | May 26, 2020 3:51:30 PM

OK, thanks Adam.

Interesting, although you are correct, that: " ...the solution is to make our claims clearer, not to give up on precision" Yet, you are wrong with all due respect, that distinction between facts and values, are "at the margins". But, that is why there are judges, incredibly trained, to distinguish between them both. All done by very rigorous methods, perfected during hundreds of years. We simply don't understand the system and the materials.

We shall illustrate it, how distinction between facts and values, is so hard, and may constitute, the difference, between guilt, and: innocence. Means, when slight fact, creates such difference, then, split a hair, and you cross the boundaries, between values, and facts:

In certain case ( Commonwealth vs. Michelle Carter) one juvenile, has been induced to commit suicide, by another girl ( or young adult ). The problem is, that he has been induced to do so, remotely, through text messages ( and he had committed suicide, by being suffocated inside a truck by the carbon monoxide) . I quote her argument:

" The defendant argues that, because she neither was physically present when the victim killed himself nor provided the victim with the instrument with which he killed himself, she did not cause his death by wanton or reckless conduct. She maintains that verbally encouraging someone to commit suicide, no matter how forcefully, cannot constitute wanton or reckless conduct. Effectively, the argument is that verbal conduct can never overcome a person's willpower to live, and therefore cannot be the cause of a suicide. We disagree "

End of quotation:

So, in light of unpredictable facts ( remotely inducing commission of suicide, verbally so, while only virtually presented at the scene ( text messages)) we have an issue, where there is entanglement, between facts and values. Because, the defendant, claims, that on the basis of " novel facts " ( virtual presence) the value attached to the action or offense, should be regarded as no guilt ( or rather positive value suppose). But, the lawmaker, couldn't predict it. We think that something peculiar or unique or novel has occurred here, but, not at all. Even in trivial cases, unpredictable factual configurations, renders the discussion, very entangled between them both ( facts and values).

I shall leave link to the case later, meanwhile, one may read about the case, in Harvard Law review, here:



Posted by: El roam | May 26, 2020 3:41:37 PM

Yes, El roam, that's the one!

Posted by: Adam Kolber | May 26, 2020 2:08:09 PM

Just confirm Adam, that that this is the article(of Joshua Kleinfeld, it seems clearly so):


Posted by: El roam | May 26, 2020 2:02:52 PM

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