is law for the judge to resolve and what is fact for the jury to find, provides it own distinctive take on the distinction between substance and procedure.
This study in the way in which one fundamental legal distinction plays itself out in different legal contexts could generate the wrong message. One might think these decisions of classification were simply arbitrary and politically motivated. But that would be the wrong lesson to grasp from this inquiry. The impact of context on legal analysis is not arbitrary. There are good reasons why the distinction comes out one way when the concern is legality and another way when the inquiry is achieving harmony between state and federal courts sitting in the same city.
The deep message that unites this chapter with the others that follow is that the basic distinctions of criminal justice transcend the enacted law of particular states and countries. The local statutory law does not determine the boundary that runs between substance and procedure or the way the boundary adapts to the changing context of the inquiry. The message of this chapter illustrates the overarching theme of this book. The basic distinctions of criminal justice require philosophical and conceptual analysis. On these matters, you cannot simply look up the law in the books. You have to think about the problem and clarify in your own mind the construction of the concepts that makes the most sense.