In their terrific new article, Fact Stripping, Joseph Blocher and Brandon Garrett bring formidable expertise from their respective fields to tackle the inscrutable puzzle of appellate fact review.

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In this short reply I will add to Blocher and Garrett’s illuminating work by exploring a foundational confusion their article exposes. I will first explain why classifying facts as either suitable for trial or not is a very fraught endeavor; I will then argue that this difficulty allows for significant manipulation and the risk of unprincipled application. Finally, I will nod to prior work and forecast future work where I explore re-thinking the labels we currently use altogether.

This abstract has been adapted from the author's introduction.