Legal fictions and juristic truth.

• Author: Knauer, Nancy J.

1. Introduction II. The Legal Fiction A. Common Law Legal Fictions B. Statutory Legal Fictions III. New Legal Fictions? A. Empirical Legal Errors B. Discredited Legal Regimes C. Statutory Schemes IV. Conclusion I. INTRODUCTION

   The legal fiction is a curious artifice of legal reasoning. (1) In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. (2) In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. (3) Attractive nuisance re-imagines the child trespasser as an invitee. (4) A host of doctrines bearing the term "constructive" in their titles adopt an "as if" rationalization that deems something to have occurred despite the fact that it did not. (5) These doctrines include constructive notice, (6) constructive eviction, (7) constructive ouster, (8) and constructive discharge, (9) to name but a few.

   The legal fiction has a venerable pedigree that can be traced to Roman law where the praetor would endorse a false procedural statement, known as a fictio, in order to extend a right of action beyond its intended scope. (10) Some of the boldest legal fictions were adopted centuries ago by the English courts to mitigate the relentless formalism of the ancient writs (11) and the harsh results dictated by the command of stare decisis et non quieta movere. (12) Given this long and storied history, it is tempting to dismiss the legal fiction as a "topic of antiquarian interest" (13) or a "blundering device[] of an unphilosophical age." (14) Indeed, some of the assumptions that underlie common law fictions, such as the rule of the fertile octogenarian, are quite literally antediluvian. (15)

   It would be a mistake, however, to conflate the moribund common law fictions that punctuate the first-year Property course with the broader category of legal fictions. (16) Far from being a historical oddity, legal fictions are common features of not only our common law, but also our statutory and regulatory law. (17) These patently false statements and deeming principles empower lawyers and decision-makers to resolve novel legal questions through arguments of equivalence and creative analogical reasoning. (18)

   In contemporary terms, our tax code provides an excellent example of statutorily imposed legal fictions. (19) Designed to untangle complicated financial relationships and transactions, tax fictions govern basic principles, such as the appropriate unit of taxation. (20) Tax fictions also mandate elaborate schemes, such as the deemed dual transfer of "foregone interest" in the case of a below-market rate loan. (21)

   The apparent contradiction presented by the legal fiction has fascinated legal scholars, who have differed widely with respect to their views on the desirability of fictions. (22) William Blackstone offered tepid approval of fictions and acknowledged their potential usefulness, (23) whereas Jeremy Bentham raged against common law fictions, which he denounced as a usurpation of legislative prerogative. (24) Lon Fuller produced the definitive modern assessment of the legal fiction and carefully weighed both its promise and inherent risk. (25)

   Written in the early 1930s, Fuller's three-part series gave us the now classic definition of a legal fiction as "either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility." (26) Fuller posited an inverse relationship between the danger presented by any given fiction, and the extent to which the fiction was openly acknowledged to be false. (27) According to Fuller, a fiction is only dangerous when it is believed. (28)

   More recently, legal commentators writing in a number of diverse fields have demonstrated a renewed interest in the legal fiction. (29) Not surprisingly, some of this work reflects the recent turn in legal scholarship toward empirical research and the re-evaluation of the role of social science data in the production of legal rules. (30) Armed with empirical research, scholars have noted that judges frequently rely on presumptions and rules that are demonstrably false, such as the reliability of eye witness testimony. (31) Far removed from empirical concerns, law and literature provides a natural platform for the study of legal fictions, and scholars writing from this perspective have used the insights of narrative and interpretation to recast the legal regime of slavery and the doctrine of discovery as deadly legal fictions. (32) Even scholars laboring within the statutory and regulatory morass of the tax laws have questioned the desirability of legal fictions, suggesting that the intractable problems of complexity and compliance are due to "ectopia" caused by over-reliance on tax fictions. (33) In each case, this new scholarship has sought to expand the category of legal fictions beyond Fuller's definition, in that the newly designated fictions are either not acknowledged to be false or are not themselves demonstrably false.

   Although I generally applaud efforts to revisit concepts that have fallen into commonplace, I believe it is important to resist the revisionist urge to dismiss discredited legal rules and burdensome statutory regimes as mere fictions. Such an expansive definition of legal fictions not only dilutes the utility of the category, it misapprehends the constitutive power of law and the nature of juristic truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base "false" simply because it is statutorily prescribed? The assertion that something qualifies as a fiction necessarily invokes a concept of reality against which the fiction must be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth.

   This Essay reviews the three categories of new fictions outlined above, which I refer to as (1) empirical legal errors; (2) discredited legal regimes; and (3) complex statutory schemes. With respect to each category, I conclude that the appellation of legal fiction is a misnomer and that the integrity of Fuller's classic definition should be retained for its analytic force. (34) The conundrum presented by the legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis. (35) The new legal fictions, however, are different in kind from those described by Fuller because they are neither transparently false nor demonstrably false. (36) As a result, the new legal fiction scholarship does not add to the existing work on fictions, but rather changes the conversation entirely.

   In addition, I note that the new fictions are often unveiled without an explicit discussion of the standard used to determine their falsity. (37) Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. (38) This is not the case when dealing with legal regimes such as slavery or the doctrine of discovery because these legal rules do not reflect or mimic life events; rather they help shape and define complex social relationships and hierarchies. (39) Instead of demonstrable statements of facts, these regimes encompass abstract concepts, such as liberty, autonomy, and sovereignty that are not provable in any conventional sense of the term. (40) Thus, the reliability of eye witness testimony is subject to external verification, whereas the legal regime of slavery and the doctrine of discovery stand as juristic truths quite independent from questions of empirical proof.

   Finally, I contend that the term legal fiction carries a dismissive connotation that not only denies the inherently constitutive power of the law, but ignores the reality of the system of sanctions established under various regulatory schemes. It also acts as a disservice to those who have labored under the discredited legal regimes that have been recently labeled as legal fictions. The notion of a legal fiction requires a present agreement to temporarily suspend belief and to proceed notwithstanding the acknowledged falsity of the statement. (41) With the clarity of hindsight, there can be no doubt that slavery, and later Jim Crow, were deadly conceits of a different age that exacted untold pain and suffering on persons of color who were conveniently viewed as Other. (42)

   The fact that these regimes are now discredited, however, does not mean that they can be dismissed as mere legal fictions. (43) They were violent legal regimes that spanned centuries. Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie. (44) I would add that a fiction can also become dangerous when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience.

   In Part II, I provide a brief overview of legal fictions and discuss the prevalence of both common law and statutory legal fictions, with a particular emphasis on the law school curriculum. (45) Part III then establishes that the three categories of "new legal fictions" (i.e., empirical legal errors, discredited legal regimes, and complex statutory schemes) are different in kind from the classic fictions and, therefore, warrant separate treatment. (46) In each case, the newly labeled "fictions" are either not transparently false or not demonstrably false. With respect to empirical errors, I argue that legal rules valued for...