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Ohio St. L.J.


In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on 'functional considerations" in assigning a question of patent claim construction to the judge. In this Article, the author critiques the Court's recent Seventh Amendment jurisprudence, arguing that the Seventh Amendment compels courts to assign questions of fact to the jury. The author then proposes a test for identifying questions of fact based on the types of inferences required to answer a particular question. Under this test, questions requiring inductive inferences about the transactions or occurrences in dispute are 'fact" questions, which must be decided by the jury in appropriate cases. All other questions may permissibly be answered by the judge. The author applies this test to the Court's recent decisions to show how an inferential understanding of the fact-law distinction can help resolve the most difficult issues of decisional responsibility.