LEGAL FICTIONS AND JURISTIC TRUTH

NANCY J. KNAUER ∗

I. Introduction........................................................................................... 70
II. The Legal Fiction .................................................................................. 78
A. Common Law Legal Fictions ................................................ 80
B. Statutory Legal Fictions......................................................... 86
III. New Legal Fictions? ............................................................................. 87
A. Empirical Legal Errors .......................................................... 89
B. Discredited Legal Regimes .................................................... 96
C. Statutory Schemes................................................................ 108
IV. Conclusion .......................................................................................... 119

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

 
∗ Professor of Law, James E. Beasley School of Law, Temple University. An earlier version of
Part III.C. of this Essay was presented as a conference paper at the “Jurisprudential Perspectives
of Taxation Law” colloquium held at the Universidad Computense de Madrid in September 2008.
The colloquium was organized by John Prebble, Professor of Law, Victoria University of
Wellington, and María Amparo Grau Ruiz, Associate Professor of Financial and Tax Law at the
Universidad Computense de Madrid. My colloquium paper commented on Professor Prebble’s
general thesis of “Tax Ectopia” from the perspective of Critical Tax Theory. I am greatly
indebted to all the participants for their thoughtful comments and challenging questions. I would
also like to thank Alice Abreu, Andrew T. Fede, and Simon Stern for their insightful comments
on earlier drafts.
1. See LON L. FULLER, LEGAL FICTIONS 1 (1967) (describing legal fictions as “conceits of
the legal imagination. Sometimes . . . obvious and guileless . . . . [O]ther times . . . [a] more
subtle character . . . .”).
2. See id. (“There is scarcely a field of law in which one does not encounter [legal
fictions]”).

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2010] LEGAL FICTIONS AND JURISTIC TRUTH 71

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
 
3. See The Palmyra, 25 U.S. 1, 15 (1827) (affirming civil forfeiture proceeding is in rem
“wholly unaffected by any criminal proceeding in personam”); see also Todd Barnett, Legal
Fiction and Forfeiture: An Historical Analysis of The Civil Asset Forfeiture Reform Act, 40 DUQ.
L. REV. 77, 86–92 (2001) (describing evolution of in rem personification fiction).
4. See, e.g., United Zinc Co. v. Britt, 258 U.S. 268, 275 (1922) (establishing the notion that
for children, an attractive nuisance has “the legal effect of an invitation”). Fuller referred to the
attractive nuisance doctrine as “the boldest fiction to be found in the modern law.” FULLER,
supra note 1, at 66.
5. See HANS VAIHINGER, THE PHILOSOPHY OF “AS IF:” A SYSTEM OF THE THEORETICAL,
PRACTICAL, AND RELIGIOUS FICTIONS OF MANKIND (C.K. Ogden trans., Routledge 1965)
(1924). The German philosopher Hans Vaihinger expounded on the nature and influence of so-
called “as if” reasoning across the disciplines. See id. Fuller referred to this construction of
analogical reasoning as the “assumptive form.” FULLER, supra note 1, at 37.
6. See Jones v. Flowers, 547 U.S. 220, 226 (2006) (determining sufficiency of notice for
Due Process); see also FULLER, supra note 1, at 89 (discussing “constructive service”).
7. See, e.g., Minjak v. Randolph, 528 N.Y.S.2d 554, 557 (N.Y. App. Div. 1988) (holding
partial constructive eviction suspends tenant’s obligation to pay rent).
8. See, e.g., Olivas v. Olivas, 780 P.2d 640, 643 (N.M. Ct. App. 1989) (ruling co-tenant
liable for constructive ouster).
9. See, e.g., PA State Police v. Suders, 542 U.S. 129, 142–43 (2004) (establishing standard
for constructive discharge applicable in Title VII employment discrimination cases).
10. See DICTIONARY OF GREEK AND ROMAN ANTIQUITIES 855 (William Smith et al. eds.,
3d ed., London, John Murray 1891) (defining fictio as “a technical term of procedure”). The
praetor inserted a fiction in the formula that was then submitted to the judex for decision. See id.
The effect was to extend a right of action to instances where it did not apply. See id.; see also
OLGA EVELINE TELLEGEN-COUPERUS, A SHORT HISTORY OF ROMAN LAW 55 (Routledge 1993)
(1990) (discussing role of praetor); VAIHINGER, supra note 5, at 34 (discussing Roman fictones
juris).
11. See infra notes 52–56 and accompanying text (describing procedural fictions of Writ of
Quominus and Bill of Middlesex).
12. See John Hasnas, Legal Pluralism, Privatization of Law and Multiculturalism: The
Depoliticization of Law, 9 THEORETICAL INQ. L. 529, 536 (2008) (“Prior to the nineteenth

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72 ST. THOMAS LAW REVIEW [Vol. 23

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
 
century, the common law courts did not apply the doctrine of stare decisis; that is, they did not
treat previous judicial decisions as binding legal authority for the decision of the cases before
them.”). Legal fictions relating to jurisdictional and pleading issues arose first because stare
decisis did not take control until the nineteenth century. See id.; see also Todd Zywicki, The Rise
and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 NW. U. L. REV. 1551,
1584–87 (2003) (describing development of stare decisis). Zymicki explains:
Although most modern lawyers and scholars conceive of the doctrine of stare decisis
as a formative element of the common law, this is an a historical understanding of the
development of the common law. The doctrine of stare decisis, the idea that the
holding of a particular case is treated as binding upon courts deciding later similar
cases, is a late nineteenth-century development and represents a clear doctrinal and
conceptual break with the prior history of the common law.
Id. at 1566.
13. See FULLER, supra note 1, at 94. Writing in 1931, Lon Fuller cautioned that “it is easy to
slip in the past tense” when discussing legal fictions. Id. at 93. Additionally, Fuller stated:
The age of the legal fiction is not over. We are not dealing with a topic of antiquarian
interest merely. We are in contact with a fundamental trait of human reason. To
understand the function of the legal fiction we must undertake an examination of the
processes of human thought generally.
Id. at 94.
14. Id. at 93 (“[These legal fictions] are now recognized as the blundering devices of the
unphilosophic age, which had not yet learned from science to value truth for its own sake.”).
15. See, e.g., Genesis 17:15–19. For example, the legal fiction of the “fertile octogenarian”
that is applied in the context of the Rule Against Perpetuities is often justified by reference to the
Biblical story of Sarah who gave birth at the age of ninety. See id. For a longer description of the
rule of the fertile octogenarian, its origin, and application. See infra notes 172–74 and
accompanying text; see also Jesse Dukeminier, A Modern Guide to Perpetuities, 74 CAL. L. REV.
1867, 1876 (referring to rule as “one of the strangest aberrations of the legal mind”).
16. See FULLER, supra note 1, at 55. Fuller specifically mentions that the legal fictions
taught in the first year Property course pose challenges for students. See id. (explaining how
“[e]very teacher of Property law knows how difficult it is to convince students that the only
proper function of the ‘relation back’ of title is as a device of expression”).
17. See id. at 90–92 (discussing statutory legal fictions).
18. See id. at 94 (“The fiction is generally the product of the law’s struggles with new
problems.”) (emphasis in original); see also id. at 21–22 (“[F]ictions are, to a certain extent,
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 73

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
 
simply the growing pains of the language of the law.”).
19. See infra notes 268–338 and accompanying text (discussing statutory legal fictions in
taxation).
20. See, e.g., I.R.C. § 1(a)(b)&(c) (West 2009). Under section 1 of the federal income tax,
the rate of tax depends on the filing status of the individual (e.g., unmarried, married, head of
household). See id.
21. See I.R.C. § 7872(e)(2)(A)&(B) (West 2009). Statutorily created “foregone interest” is
deemed transferred from the lender to the borrower and then re-transferred from the borrower to
the lender. Id.; see also infra notes 303–14 and accompanying text (discussing legal fiction
inherent in section 7872).
22. See FULLER, supra note 1, at 1–5 (discussing Blackstone’s and Bentham’s views on legal
fictions); see also Peter J. Smith, New Legal Fictions, 95 GEO. L.J. 1455, 1466 (2007) (“The early
commentators were divided on the virtue of the legal fiction.”). Whereas Blackstone and
Bentham opined on the device of the fiction generally, Vaihinger noted that the fiction could be
used instrumentally either to great benefit or to further “the grossest forms of injustice.”
VAIHINGER, supra note 5, at 148 (“In legal practice the employment of fiction may lead both to
benefits and also the grossest forms of injustice, as when all women were treated as if they were
minors.”) (emphasis in original).
23. See FULLER, supra note 1, at 3.
24. See id. at 57 (quoting Bentham that a legal fiction was “a willful falsehood, having for its
object the stealing of legislative power, by and for hands which could not, or durst not, openly
claim it, and but for the delusion thus produced could not exercise it.”); see also Nomi Maya
Stolzenberg, Bentham’s Theory of Fictions—A Curious “Double Language”, 11 CARDOZO STUD.
L. & LIT. 223, 232–36 (1999) (providing deatiled analysis of Bentham’s views on legal fictions).
25. See FULLER, supra note 1. Fuller’s work on fictions was originally a series of three law
review articles that appeared in the Illinois Law Review in 1930 and 1931. Id. at vii. They were
republished in 1967 “in only [a] slightly altered form” with a new Introduction written by Fuller.
Id.
   

74 ST. THOMAS LAW REVIEW [Vol. 23

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

 
26. Id. at 9.
27. See id. at 9–10 (“A fiction becomes wholly safe only when it is used with a complete
consciousness of its falsity.”).
28. See id. at 9 (“[I]t is precisely those false statements that are realized as being false that
have utility.”).
29. See, e.g., Aviam Soifer, Reviewing Legal Fictions, 20 GA. L. REV. 871, 872 (1986). This
interest in legal fictions is relatively new. See id. Writing in 1986, Aviam Soifer remarked on the
“scholarly silence” since Fuller’s work in the 1930s. Id. at 874–75 (“Hardly anybody in the
United States talks much about legal fictions these days.”).
30. See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and
Establishing Social Science in Law, 134 U. PA. L. REV. 477, 485–489 (1986); see also Craig
Haney, Making Law Modern: Toward a Contextual Model of Justice, 8 PSYCHOL. PUB. POL’Y &
L. 3, 10 (2002) (“[A] factual jurisprudence is our best hope for a fair and equitable legal
system.”).
31. See Smith, supra note 22, at 1452–55 (characterizing evidentiary rules governing eye
witness testimony as a “new legal fiction”).
32. See, e.g., CHRISTINA ACCOMANDO, THE REGULATIONS OF ROBBERS: LEGAL FICTION OF
SLAVERY AND RESISTANCE 4 (2001) (“[L]egal fictions of American slavery tell us that slaves and
African Americans had no legal or political voice.”); Jen Camden and Kathryn E. Fort,
“Channeling Thought”—The Legacy of Legal Fictions From 1823, 33 AM. INDIAN L. REV. 77,
90 (2009) (referring to doctrine of discovery as a “legal fiction”). Aviam Soifer noted that legal
fictions “pose special challenges for the best work on law and literature.” Soifer, supra note 29 at
873. Vaihinger proposed the use of specific language to differentiate between scientific fictions
on one hand and myth or aesthetic fictions on the other hand. See VAIHINGER, supra note 5, at 81
& n1. Vaihinger argued that scientific fictions should be called by the Latin fictones, whereas
aesthetic fictions should be called figments. Id.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 75

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
 
33. See, e.g., John Prebble, Income Taxation: A Structure Built on Sand, 24 SYDNEY L. REV.
301, 305–06 (2002) [hereinafter Prebble, Built on Sand] (“[T]ax law’s concept of income is not
income itself but a simulacrum of income.”); John Prebble, Fictions of Income Tax, Working
Paper Series, Paper No. 7, 21–22, Centre for Accounting, Governance, and Taxation Research,
available at http://www.victoria.ac.nz/sacl/cagtr/working-papers/WP07.pdf
(last visited Sept. 2, 2009) [hereinafter Prebble, Fictions] (asserting tax law inherently unstable
due to prevalence of tax fictions).
34. See FULLER, supra note 1, at 9 (providing classic definition of legal fictions).
35. See generally VAIHINGER, supra note 5, at 50–53 (comparing fictional concepts in
mathematics with those used in jurisprudence). Vaihinger identified a number of “historically
important fictions,” including the “Linnaean system” of classification, “Adam Smith’s theory,”
the “atomic theory,” and “differential calculus.” Id. at 80.
36. See FULLER, supra note 1, at 9 (providing classic definition of legal fictions). To Fuller,
even a false statement that is recognized as having utility must be acknowledged to be false
because “it is precisely those false statements that are realized to be false that have utility.” Id.
   

76 ST. THOMAS LAW REVIEW [Vol. 23

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,

 
37. See infra notes 172–87 and accompanying text (discussing importance of measure of
falsity). This failure is most evident in the case of the discredited legal regimes. See infra notes
188–267 and accompanying text.
38. See Smith, supra note 22, at 1441–42. In the case of eye witness testimony, Smith notes:
“social science research has exhaustively demonstrated that eyewitness identifications often are
unreliable, that most people grossly overestimate their and other people’s ability to make accurate
eyewitness identifications, and that jurors are disproportionately influenced by eyewitness
testimony.” Id.
39. See, e.g., VAIHINGER, supra note 5, at 43 (observing “there is nothing in the real world
corresponding to the ideas of liberty, though in practice it is an exceedingly necessary fiction.”).
40. See Michael V. Hernandez, A Flawed Foundation: Christianity’s Loss of Preeminent
Influence on American Law, 56 RUTGERS L. REV. 625, 681–83 (2004) (describing modern
philosophies regarding racial classifications and hierarchies). Although an appeal to natural law
will refute slavery, it should be remembered that it was natural law that justified slavery in the
first instance. See id. at 674–81; see also John R. Kroger, The Philosophical Foundations of
Roman Law: Aristotle, the Stoics, and Roman Theories of Natural Law, 2004 WIS. L. REV. 905
(2004) (discussing slavery in Justinian’s Institutes and the Aristotelian approval of slavery).
41. See FULLER, supra note 1, at 9.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 77

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 their veracity, such as the
reliability of eyewitness testimony, are not appropriately termed legal
fictions despite the fact that they might rest on false premises. 47 A classic
legal fiction maintains its utility despite its falsity, but an empirically based
rule that rests on a factual error should be modified or discarded.
I then turn to the disturbing trend in scholarship to dismiss discredited
legal regimes, such as slavery and the doctrine of discovery, as legal

 
42. See generally A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE
AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 1 (1980); A. LEON HIGGINBOTHAM, JR.,
SHADES OF FREEDOM: RACIAL POLITICS AND PRESUMPTIONS IN THE AMERICAN LEGAL
PROCESS 2 (1996); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (2002).
43. See GEORGE ORWELL, 1984, at 214 (Signet Classic 1961). The suppositions underlying
these discredited regimes seem to have functioned more like an Orwellian “big lie” than a classic
legal fiction. Id. In 1984, an Orwellian “big lie” is described as follows: “[t]o tell deliberate lies
while genuinely believing in them, to forget any fact that has become inconvenient, and then
when it becomes necessary again, to draw it back from oblivion for just so long as it is needed . . .
.” Id.
44. See FULLER, supra note 1, at 9–10.
45. See infra notes 52–124 and accompanying text (examining traditional legal fictions).
46. See infra text accompanying notes 125–348 (examining categories of new legal fictions).
47. See Smith, supra note 22, at 1441–42 (discussing empirical evidence regarding reliability
of eye witness testimony).
   

78 ST. THOMAS LAW REVIEW [Vol. 23

fictions. 48 I distinguish these examples from the empirical errors discussed

in the preceding section. Specifically, I address the argument that some of
the racist assertions made in judicial opinions were known to be false. 49 I
maintain that, even if they were understood to be false, they were
propounded with the intent to deceive and, therefore, do not qualify as legal
fictions.
In the last section, I consider the constitutive power of law in the less
emotionally charged atmosphere of a complex statutory scheme. 50 I
maintain that even though statutory schemes may be artificial
constructions, they cannot be said to be false in any meaningful way. A
brief conclusion restates my rationale for advocating a relatively narrow
definition of legal fictions and offers some final observations regarding the
nature of juristic truth. 51

II. THE LEGAL FICTION

The traditional legal fiction is an enabler. It is a device used to
facilitate the application of the law to novel legal questions and
circumstances. 52 Some legal fictions consist of bald untruths. This was the
case with many of the earliest jurisdictional fictions, such as the Writ of
Quominus 53 or the Bill of Middlesex, 54 where a plaintiff seeking redress in
a particular court would have to claim a nonexistent debt owed to the
Crown 55 or an invented trespass in the county of Middlesex. 56 The
majority of legal fictions, however, operate more in the realm of
 
48. See, e.g., ACCOMANDO, supra note 32 (referring to slavery as a legal fiction); Camden
and Fort, supra note 32, at 90 (discussing the doctrine of discovery as a legal fiction).
49. See infra notes 217–67 and accompanying text (analyzing Justice Marshall’s opinion in
Johnson v. M’Intosh, 21 U.S. 543 (1823)).
50. See infra notes 268–346 and accompanying text (analyzing claims that tax codes
necessarily rest on legal fictions).
51. See infra pp. 117–18.
52. See FULLER, supra note 1, at 21–22. Fuller argues that to “reject all of our fictions
would be to put legal terminology in a straightjacket––fictions are, to a certain extent, simply the
growing pains of the language of the law.” Id.
53. See EDWARD JENKS, A SHORT HISTORY OF ENGLISH LAW 173 (1912). A Writ of
Quominus was a procedural fiction used to secure jurisdiction in the Court of the Exchequer. See
id. It required the averment that the plaintiff owed a debt to the Crown. See id.; see also Frederic
M. Bloom, Jurisdiction’s Noble Lie, 61 STAN. L. REV. 971 (2009) (providing a contemporary
reworking of the legal fictions implicated in jurisdictional cases).
54. See JENKS, supra note 53, at 170–71. A Bill of Middlesex was a procedural fiction used
to secure jurisdiction before the King’s bench. See id. It required the averment by the plaintiff
that a trespass had taken place in the County of Middlesex. See id. at 171.
55. See id. at 172.
56. See id.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 79

metaphor. 57 A corporation is treated as if it were a person for certain legal

purposes. 58 An adopted child is treated as if he were reborn as a member of
his adopted family for purposes of inheritance. 59
These types of fictions are a lawyer’s stock in trade. 60 Even though
the defendant was not in fact physically evicted, a lawyer can argue that the
conditions were so deplorable that it was as if the defendant had been
forcibly removed. 61 In this way, analogical reasoning empowers lawyers
and judges to extend the law to address unforeseen, and perhaps
unintended, situations. 62 Exercising this same sort of as if reasoning, some
recent scholarship has endeavored to extend the definition of a legal fiction
well beyond Fuller’s intended scope. 63 This section outlines the classic
view of the legal fiction, discusses the equitable remedy of a constructive
trust, and addresses the use of legal fictions in statutory drafting.
 
57. See, e.g., Robert L. Tsai, Fire, Metaphor, and Constitutional Myth-Making, 93 GEO. L.J.
181 (2004) (discussing the importance of metaphor in legal reasoning and decision making). In
addition, the Mercer Law Review devoted an entire issue to the use of metaphor in legal analysis.
See Symposium, Using Metaphor in Legal Analysis and Communication, 58 MERCER L. REV.
835 (2007).
58. See FULLER, supra note 1, at 13. On the topic of corporate personality, Fuller wrote:
No one can deny that the group of persons forming a corporation is treated, legally
and extra- legally, as a ‘unit.’ ‘Unity’ is always a matter of subjective convenience . .
. . [T]his treatment of the corporation bears a striking (though not complete)
resemblance to that accorded ‘natural persons.’ It then follows that natural persons
and corporations are to some extent treated in the same way in the law . . . .
Id. See generally Ian B. Lee, Citizenship and the Corporation, 34 LAW & SOC. INQUIRY 129
(2009) (providing a recent critique of the legal fiction of corporate personhood).
59. See FULLER, supra note 1, at 39 (“It is convenient to describe the institution by saying
that the adopted child is treated as if he were a natural child.”); see also Frances H. Foster, The
Family Paradigm of Inheritance Law, 80 N.C. L. REV. 199, 248 (2001) (discussing “elaborate
fictions” created by judges in inheritance cases); Adam J. Hirsch, Inheritance Law, Legal
Contraptions, and the Problem of Doctrinal Change, 79 OR. L. REV. 527, 538 (2000) (discussing
adoption).
60. See Soifer, supra note 29, at 876 (“Post-realist lawyers, scholars, and judges concede that
legal fictions are the tools of our legal trade.”).
61. See, e.g., Minjak v. Randolph, 528 N.Y.S.2d 554, 557 (N.Y. App. Div. 1988) (holding
condition of premises supports finding of partial constructive eviction). Constructive eviction is
often raised as an affirmative defense for non-payment of rent. Id.
62. See Ellen E. Sward, Justification and Doctrinal Evolution, 37 CONN. L. REV. 389, 443–
46 (2004) (discussing role of legal fictions in development of jurisdictional doctrines). See
generally Dan Hunter, Reason is Too Large: Analogy and Precedent in Law, 50 EMORY L.J.
1197 (2001) (discussing the cognitive science model of human thinking and its relationship to
legal reasoning).
63. See Louise Harmon, Falling off the Vine: Legal Fictions and the Doctrine of Substituted
Judgment, 100 YALE L.J. 1, 2–3 (1990). Harmon notes that, prior to Fuller, there was no
consensus regarding what qualified as a legal fiction. See id. (“None of the participants in the
historical debate could agree.”). In addition to Blackstone and Bentham, Harmon discusses the
views of Henry Maine, John Chipman Gray, John Austin, and Roscoe Pound. See id. at 2–16.
   

80 ST. THOMAS LAW REVIEW [Vol. 23

A. COMMON LAW LEGAL FICTIONS

Fictions may be ubiquitous across the law, 64 but, as Fuller noted,

fictions are also found in other disciplines. 65 Much of modern political
philosophy rests on basis of a presumed social compact. 66 Economics
posits man as a rational actor, 67 and scientific inquiry often proceeds on
principles acknowledged to be false. 68 Greatly influenced by the German
philosopher Hans Vaihinger’s The Philosophy of As If, 69 Fuller went so far
as to suggest that the construct of the fiction was “an indispensable
instrument of human thinking.” 70
Adopting a pragmatic approach to legal fictions, Fuller wrote
approvingly of the persuasive force of legal fictions, stating that to
“[e]liminate metaphor from the law [would] . . . reduce[] its power to
convince and convert.” 71 However, he also warned of the dangers inherent
in the deployment of false statements and argued, “[a] fiction becomes
wholly safe only when it is used with a complete consciousness of its
falsity.” 72 For Fuller, a fiction that was believed not only dangerous, it was
 
64. See FULLER, supra note 1, at 1 (“There is scarcely a field of law in which one does not
encounter one after another of these conceits of the legal imagination.”); see also Evan J. Criddle,
Chevron’s Consensus, 88 B.U. L. Rev. 1271, 1323 (2008) (“The ubiquity of legal fictions in
statutory interpretation generally . . . .”).
65. See FULLER, supra note 1, at ix (mentioning, specifically, political science and
economics); see also VAIHINGER, supra note 5. Vaihinger describes the many and varied
disciplines that utilize fictions, including mathematics, physics, ethics, law, and the natural
sciences. See id.
66. See FULLER , supra note 1, at 98 (“In theories of the state there appears the constantly
recurring notion of the Social Compact, a notion which perhaps was never given full credence as
a historical fact by anyone, but which has nevertheless had the most profound, and perhaps,
beneficial, influence on the history of human thought.”). Alexis de Tocqueville specifically
commented on the importance of legal fictions with respect to the founding of the United States.
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 193 (J. Mayer ed., Henry Reeve trans.,
Penguin Books 2003) (1904) (“The government of the Union rests almost entirely on legal
fictions.”).
67. See VAIHINGER, supra note 5, at 20 (discussing Adam Smith and as if thinking in
economics); see also FULLER, supra note 1, at 106–07 (“The assumption . . . that man is an
‘economic animal’ constantly seeking his own advantage is an illustration of . . . a fiction.”).
68. See FULLER, supra note 1, at 124–27 (comparing legal fictions with scientific fictions).
69. FULLER, supra note 1, at viii (“[A]t the time when I began to study the literature of
fictions, the subject was surrounded by the romantic aura of Hans Vaihinger’s Philosophy of As
If, with its mysterious title promising obscurely some mind-expanding reorientation of human
perspectives.”). See generally VAIHINGER, supra note 5 (exploring the philosophy of as if
thinking).
70. FULLER, supra note 1, at 93.
71. Id. at 24.
72. Id. at 10.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 81

no longer a fiction. 73 Fuller also reasoned that once fictions had outlived
their utility, they would fall into disuse. 74 Quoting a metaphor coined by
John Chipman Gray, Fuller likened legal fictions to scaffolding that
although “useful and necessary” could also be “removed with ease” once
the job was completed. 75
The use of fictions may be second nature to lawyers and judges, but
the duality of the legal fiction never ceases to confound first-year law
students. 76 As any law professor can attest, an essential part of legal
education involves the mastery of as if reasoning, 77 but the type of
sophisticated analogical reasoning extolled by Fuller and theorized by
Vaihinger does not always come naturally to lawyers-in-training. 78 Along
with pleading in the alternative, legal fictions directly contradict the intense
emphasis we place in the first-year curriculum on correctly discerning the
salient facts of a given case. 79 If fact finding is an ultimate goal of
 
73. See id. at 9–10 (“A fiction taken seriously, i.e., believed becomes dangerous and loses its
utility.”). Once a fiction loses utility, “[i]t ceases to be a fiction under either alternative of
[Fuller’s classic] definition . . . .” Id. at 10.
74. See id. at 14. Fuller makes the distinction between “live and dead fictions.” Id. He
argues: “A fiction dies when a compensatory change takes place in the meaning of the words or
phrases involved, which operates to bridge the gap that previously existed between the fiction and
reality.” Id.
75. Id. John Chipman Gray used analogical reasoning to compare legal fictions to
scaffolding. Id. Fuller quoted Gray: “fictions are scaffolding – useful almost necessary, in
construction – but after the building is erected, serving only to obscure it.” Id. Fuller also added,
that like scaffolding, fictions could be “removed with ease.” Id.
76. See FULLER, supra note 1, at 55. Fuller singled out Property professors for having to
teach students legal fictions. Id. (“Every teacher of property law knows how difficult it is to
convince students that the only proper function of the ‘relation back’ of title is as a device of
expression.”). For a discussion of legal fictions that arise in other law school courses see Julie A.
Seaman, Cognitive Dissonance in the Classroom: Rationale and Rationalization in the Law of
Evidence, 50 ST. LOUIS L.J. 1097 (2006) (discussing legal fictions in the basic Evidence course);
see also Jerry J. Phillips, Teaching Torts: Law School Teaching, 45 ST. LOUIS U. L.J. 725, 726
(2001) (discussing legal fictions in the first-year Torts class).
77. See H. David Rosenbloom, Banes of an Income Tax: Legal Fictions, Elections,
Hypothetical Determinations, Related Party Debt, 26 SYDNEY L. REV. 17, 20 (2004) (“Indeed, a
basic aspect of legal training, absorbed by law students throughout the world, is that the ‘law’
operates with unshakable acceptance of such fictions.”); see also Soifer, supra note 29, at 872
(“[L]egal fictions is an issue that those of us who teach law bump into constantly.”).
78. See VAIHINGER, supra note 5, at 29 (“All knowledge, if it goes beyond simple actual
succession and co-existence, can only be analogical.”) (emphasis in original).
79. See, e.g., Kenneth C. Davis, An Approach to Problems of Evidence in the Administrative
Process, 55 HARV. L. REV. 364, 402–03 (1942) (discussing the classic distinction between
questions of law and questions of fact). With respect to layman, Fuller asserted that they were
not typically concerned about fictions:
Laymen frequently complain of the law; they very seldom complain that it is founded
upon fictions. They are more apt to express discontent when the law has refused to
   

82 ST. THOMAS LAW REVIEW [Vol. 23

adjudication, then our students are correct to wonder how the entire
doctrine of civil forfeiture can be based on the preposterous fiction that an
inanimate object was bad? 80
As a Property professor, I have innumerable opportunities to
introduce my students to legal fictions, ranging from the inscrutable livery
of seisin pantomime 81 to the mysteries of instantaneous privity. 82 Without
fail, however, the constructive trust proves to be one of the most difficult
concepts for students to grasp. 83 I teach the constructive trust concept in a
number of places throughout the first-year Property course, and it never
ceases to encounter staunch resistance from my students who bristle at the
realization that no trust is actually created. I suspect this is partly due to
the fact that the constructive trust continues to have contemporary
application and, therefore, is not easily explained away as simply the legal
detritus of formalism. 84
To some extent, part of becoming a lawyer is learning how to argue
that both sides are up without descending into cynicism. In a case on
easements implied by estoppel, my Property students chuckle when they
realize that the plaintiff alleged both an easement by estoppel and an
easement by prescription. 85 The inside joke for the properly schooled
Property aficionado is that a finding of one would preclude a finding of the
other. 86 If the plaintiff has an easement by estoppel, then the plaintiff was
 
adopt what they regard as an expedient and desirable fiction. Perhaps, too, the fiction
has played its part in making the law ‘uncognoscible’ to the layman. They very
strangeness and boldness of the legal fiction has tended to stifle his criticisms.
FULLER, supra note 1, at 2.
80. See Barnett, supra note 3 (describing evolution of in rem personification fiction).
81. See, e.g., JENKS, supra note 53, at 259 (describing the “medieval principle that freehold
estates in possession could only be created or transferred by livery of corporal seisin”).
82. See Susan F. French, Servitudes Reform and the New Restatement of Property: Creation
Doctrines and Structural Simplification, 73 CORNELL L. REV. 928, 934 n.24, 25 (1988)
(explaining the distinction between “instantaneous” and “simultaneous” privity).
83. See infra notes 84–101 and accompanying text. With respect to the constructive trust,
Fuller writes: “The ‘constructive trust’ originally involved a pretense that the facts which create
an actual trust were present. Today it is simply a way of stating that the case is a proper one for
equitable relief.” FULLER, supra note 1, at 32; see also Chaim Saiman, Restating Restitution: A
Case of Contemporary Common Law Conceptualism, 52 VILL. L. REV. 487, 523 (2007) (“[A]
constructive trust is a legal fiction, a common-law remedy in equity that may only exist by the
grace of judicial action.”).
84. See, e.g., Rase v. Castle Mountain Ranch, Inc., 631 P.2d 680, 686 (Mont. 1981)
(imposing a constructive trust on a purchaser of property with pre-existing long-term licensees).
85. See, e.g., Holbrook v. Taylor, 532 S.W.2d 763, 766 (Ky. 1976) (finding easement by
estoppel where there was reasonable reliance).
86. See, e.g., Community Feed Store, Inc. v. Ne. Culvert Corp., 559 A.2d 1068, 1070 (Vt.
1989) (discussing the requirements of acquiescence and non-permission for easement by
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 83

on the property with permission. 87 That permission, in turn, would

invalidate any claim of prescription. 88 It is like the child, who standing
amongst the shards of a broken vase, says to his or her parent, “I absolutely
did not break the vase, but if I did break the vase, it was an accident.”
The elaborate pretense of the constructive trust baffles students, but
they also seem offended by what Bentham terms the “delusion” inherent in
legal fictions. 89 Used as an equitable remedy to prevent unjust enrichment,
my students are not persuaded by my patient explanation that a constructive
trust is appropriate when there is no remedy at law. Clearly, the once stark
demarcation between law and equity has been lost to the generations. 90 To
them, equity is law, and they are not particularly comforted by the adage
that “equity considers done that which ought to be done.” 91 To them, it
sounds like an open invitation for activist judges to overstep their
institutional role.
For my students who are deeply committed to judicial restraint, I offer
the quandary presented by a slayer/beneficiary as a compelling example of
potentially unjust enrichment. The justifications I offer for the imposition
of the device echo the mild endorsements of Blackstone and Sir Henry
Maine, both of whom wrote approvingly of the expediency of legal
fictions. 92 For example, Blackstone noted that we should “applaud the
end” of most legal fictions, but should not “admire their means.” 93

 
prescription).
87. See, e.g., Holbrook, 532 S.W.2d at 765–66 (finding easement by estoppel where there
was reasonable reliance).
88. See, e.g., Community Feed, 559 A.2d at 1070 (discussing the requirements of
acquiescence and non-permission for easement by prescription).
89. See JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES AND A FRAGMENT ON
GOVERNMENT 509 (J.H. Burns & H.L.A. Hart eds., 1977). Bentham’s charge of “delusion” was
part of his overall objection to legal fictions based on principles of institutional competency. See
id. at 510. With respect to a legal fiction, Bentham argued that “its object [is] the stealing
legislative power, by and for hands, which could not, or durst not, openly claim it, —and, but for
the delusion thus produced, could not exercise it.” Id. at 509.
90. See JENKS, supra note 53, at 165–66 (explaining the distinction between English courts
of law and equity).
91. HON. MR. JUSTICE STORY, COMMENTARIES ON EQUITY JURISPRUDENCE 45 (1st ed.
1884) (expressing equitable maxim as “equity looks upon that as done, which ought to have been
done”).
92. See HENRY MAINE, ANCIENT LAW 16 (J.M. Dent & Sons Ltd. 1977). Sir Henry Maine
expressly disagreed with Bentham regarding the beneficial nature of legal fictions and urged
others not “to be affected by the ridicule which Bentham pours on legal fictions wherever he
meets them.” Id. Maine thought legal fictions were beneficial in terms of “the historical
development of law.” Id.
93. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 360 (A. Strahan
   

84 ST. THOMAS LAW REVIEW [Vol. 23

According to Blackstone, judges and lawyers were “obliged” to resort to

fictions because otherwise the law was static. 94
In the case of the slayer/beneficiary, the device of a constructive trust
permits the court to do indirectly that which it is powerless to do directly. 95
Until the 1960s and the widespread adoption of so-called slayer statutes,
state courts in the United States commonly used the constructive trust
remedy rather than allow a slayer to take as mandated under a will or the
rules of intestate succession. 96 To quote Maine, the constructive trust thus
provides an “invaluable expedient[] for overcoming the rigidity of the
law.” 97 When a beneficiary under a will kills the testator, few would argue
that the beneficiary should nonetheless take because the terms of the will
failed to foresee the unpleasant circumstances of the testator’s demise. 98
Bequests are routinely subject to requirements of survivorship, but it
would be highly unusual, and arguably paranoid, for a will to include a
contingent gift in the event a named beneficiary killed the testator. Rather
than allow the beneficiary to take under the clear and unambiguous terms
of the will, the constructive trust doctrine empowers the court to declare
that the slayer/beneficiary holds the property as trustee, in trust, for the
benefit of the next of kin. 99 The court then orders the constructive trustee
to distribute all trust assets to the constructive beneficiaries (i.e., next of kin
or contingent beneficiaries) and make good on any trust funds that may

 
14th ed. 1803). Speaking of legal fictions, Blackstone wrote “to such awkward shifts, such subtle
refinements, and such strange reasoning, were our ancestors obliged to have recourse . . . while
we applaud the end, we cannot admire the means.” Id.
94. Id.
95. See Tara Pehush, Maryland is Dying for a Slayer Statute: The Ineffectiveness of the
Common Law Slayer Rule in Maryland, 35 U. BALT. L. REV. 271, 272, 291 (2005) (noting that,
as of publication, forty-two states had slayer statutes).
96. See, e.g., In re Estate of Mahoney, 220 A.2d 475, 479 (Vt. 1966) (exercising equitable
powers to impose constructive trust on an estate that would otherwise pass to the surviving
spouse who had been convicted on manslaughter in connection with the decedent’s death).
97. MAINE, supra note 92, at 16.
98. See Jeffrey Sherman, Mercy Killing and the Right to Inherit, 61 U. CIN. L. REV. 803, 805
(1993). One exception to this general sentiment might be in the case of assisted suicide or “mercy
killing.” Id. at 808. Where the slayer acted at the decedent’s behest, it would seem the decedent
would want the slayer to inherit. Id. at 809–10.
99. See Dutill v. Dana, 113 A.2d 499, 501–02 (Me. 1952). Jeffrey Sherman explains, “legal
title to the property was decreed initially to those entitled under the intestacy statute or the
testator’s will, and only then was a constructive trust impressed upon the property in the slayer’s
hands for the benefit of the worthy candidates.” Sherman, supra note 98 at 846 n.206; see also
Dutill, 113 A.2d at 501–02 (explaining that a slayer’s inheritance is treated as a constructive
trust).
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 85

have been expended for the personal use of the trustee. 100
Although I present the constructive trust in Blackstone’s terms as a
“highly beneficial and useful” legal fiction, 101 my students, as members of
the Scalian generation, often counter that legal fictions are nothing more
than a bare attempt at a judicial power grab. This puts them in good
company because Bentham voiced similar objections. Bentham likened the
legal fiction to “swindling” 102 and denounced it as “a syphilis, which runs
in every vein, and carries into every part of the system the principle of
rottenness,” 103 but his primary objections centered on the institutional
constraints of the judiciary. 104 Bentham wrote that the legal fiction had
“for its object the stealing legislative power, by and for hands, which could
not, or durst not, openly claim it—and, but for the delusion thus produced,
could not exercise it.” 105 In this regard, Bentham underscores what many
of the earlier commentators had implicitly acknowledged⎯fictions allowed
judges to introduce flexibility and movement into the common law. 106
Today, the adoption of so-called “slayer statutes” in all but a few
states has obviated the need for courts to resort to the constructive trust as a
common law device. 107 Consistent with Fuller’s prediction, this guise of
 
100. See Dutill, 113 A.2d at 502 (“[L]egal title passes to the murderer but equity will treat him
or those claiming under him or for him as a constructive trustee because of the unconscionable
mode of its acquisition and compel him or those to convey it to the heirs or next of kin of the
deceased exclusive of the murderer.”).
101. See BLACKSTONE, supra note 93, at 43.
102. C.K. OGDEN, BENTHAM’S THEORY OF FICTIONS 141 (Harcourt, Brace & Co. 1932)
(quoting Bentham, “Fiction of use to justice? Exactly as swindling is to trade.”)
103. JEREMY BENTHAM, Elements of the Art of Packing as Applied to Special Juries,
Particularly in Cases of Libel Law, in THE WORKS OF JEREMY BENTHAM 92 (John Bowring ed.,
Simpkin, Marshall, & Co. 1843) (emphasis omitted).
104. See id.
105. Smith, supra note 22, at 1466 (quoting Bentham). Fuller wrote:
There was no doubt in Bentham’s mind about the purpose of the historical fiction. It
was “a willful falsehood, having for its object the stealing of legislative power, by and
for hands which could not, or durst not, openly claim it, but for the delusion thus
produced could not exercise it.”
FULLER, supra note 1, at 57 (quoting Bentham).
106. See, e.g., BLACKSTONE, supra note 93, at 268 (arguing judicial creation of legal fictions
“wisely avoided soliciting any great legislative revolution in the old established forms”); Oliver
R. Mitchell, The Fictions of the Law: Have They Proved Useful or Detrimental to its Growth?, 7
HARV. L. REV. 249, 262 (1893) (defining “legal fiction” as “a device which attempts to conceal
the fact that a judicial decision is not in harmony with the existing law”).
107. See Sherman, supra note 98, at 846 n.206 (“Under modern slayer statutes, the
constructive trust approach is not used; the statutes bar the slayer from acquiring legal title.”).
Bradley Myers reports that forty-three states have passed legislative slayer statutes, and only three
states continue to rely on the common law rule. See Bradley Myers, The New North Dakota
Slayer Statute: Does it Cause a Criminal Forfeiture?, 83 N.D. L. REV. 997, 1002 n.37 (2007).
   

86 ST. THOMAS LAW REVIEW [Vol. 23

the constructive trust died off once the inconsistency in the law was
addressed directly, 108 but the constructive trust remains a popular equitable
remedy in other contexts when there is no remedy available at law. 109
Interestingly, the statute that eliminated the need for the constructive trust
rests on its own legal fiction. Instead of acting as if a trust were created,
the slayer statutes provide for the distribution of an estate as if the slayer
had predeceased the decedent. 110

B. STATUTORY LEGAL FICTIONS

This statutory fiction inherent in contemporary slayer’s statutes

illustrates that legal fictions are not solely the province of judges. 111
Although most closely associated with the common law, legal fictions are
regularly used in statutes and regulations. 112 In fact, some of the earliest
Roman legal fictions, such as the fictio legis Corneliae were statutory. 113
Their use in statutory drafting reflects the ever-present nature of analogical
thinking in legal reasoning. Unlike common law fictions, they are not
susceptible to criticisms based on institutional constraints, and they have
the benefit of increasing certainty because they reduce judicial
discretion. 114
The fact that legal fictions are an integral element of statutory law
means that students are not able to bid farewell to legal fictions when they
complete the common law-heavy first year of law school. The very subject
of corporations proceeds from the legal fiction of the corporate
personality. 115 Family law brims with legal fictions related to adoption and
 
According to Myers, “[t]wo states, Massachusetts and New Hampshire, have neither a judicial
nor a legislative slayer statute.” Id.; see also Gregory C. Blackwell, Comment, Property:
Creating a Slayer Statute Oklahomans Can Live With, 57 OKLA. L. Rev. 143, 169 n.202 (2004)
(reaffirming that two states have never faced slayer statute questions).
108. See Sherman, supra note 98, at 876.
109. See, e.g., Rase v. Castle Mountain Ranch, Inc. 631 P.2d 680 (Mont. 1981) (imposing
constructive trust on purchaser of property with pre-existing long-term licensees).
110. See Sherman, supra note 98, at 851. “It is generally agreed that the simplest and perhaps
most often-applied solution is to distribute the property as if the slayer had predeceased the
victim.” Id.
111. See, e.g., VAIHINGER, supra note 5, at 34–35 (discussing an example of statutory legal
fiction in German Commercial Code).
112. See FULLER, supra note 1, at 90–92 (discussing statutory legal fictions).
113. See id. at 61; see also A DICTIONARY OF GREEK AND ROMAN ANTIQUITIES, supra note
10, at 855 (describing fictio legis Corneliae). Fuller also provides an interesting example of a
Veteran’s benefit bill that was vetoed by President Hoover. FULLER, supra note 1, at 92.
114. See FULLER, supra note 1, at 90–92.
115. See Santa Clara County v. S. Pac. R.R., 118 U.S. 394 (1886). See generally Lee, supra
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 87

abandonment and capacity. 116 Taxation involves elaborate fictions that

completely disregard the legal structure of a transaction in order to reach its
economic substance. 117
In my Taxation class, I patiently explain the virtues of legal fictions to
still skeptical students. By far my favorite example is Section 7872 of the
Internal Revenue Code, which stands out for its complex and multi-layered
deeming principles. 118 It establishes a statutory definition of “foregone
interest” 119 as the amount of interest that would have been charged on a
loan had the loan borne interest in accordance with the prevailing
applicable federal rate. 120 Of course, this is a mere fiction and no interest is
actually charged. 121 Under section 7872, this statutorily created “foregone
interest” is deemed transferred from the lender to the borrower and then
retransferred from the borrower to the lender as interest. 122
Again, given that this is a fiction, no money actually changes
hands. 123 Magically, however, this fictive interest can produce a hefty tax
bill. Depending upon the context of the underlying transaction, this
“foregone interest” can be subject to income tax twice⎯once in the hands
of the lender and then again in the hands of the borrower. 124 And, so is the
power of the fiction.

III. NEW LEGAL FICTIONS?

As evidenced by the example of section 7872 and the tax treatment of
 
note 58 (providing a contemporary account of corporate personality).
116. See Ariela R. Dubler, “Exceptions to the General Rule”: Unmarried Women and the
“Constitution of the Family”, 4 THEORETICAL INQ. L. 797, 802–03 (2003) (discussing how the
legal fiction of coverture limited the rights of women to contract and own property). Vaihinger
said this particular legal fiction created the “grossest forms of injustice.” VAIHINGER, supra note
5, at 148.
117. See, e.g., I.R.C. § 7872 (West 2006).
118. See John A. Lynch, Jr., Taxation of Below Market Rates Loans Under § 7872: This
Could Be a Lot Simpler!, 21 AKRON TAX J. 33, 43–55 (2006) (explaining reasons for enactment
of section 7872).
119. I.R.C. § 7872(e)(2) (West 2006) (defining “foregone interest”).
120. I.R.C. § 7872(f)(2) (West 2006) (defining “Applicable Federal rate”).
121. See I.R.C. § 7872(a)(1)(A)–(B) (West 2006) (providing rule for “demand” or “gift”
loans).
122. See id.
123. See id.
124. See I.R.C. § 61(a)(1), (4) (West 1984). In the case of an employer−employee
relationship, the foregone interest that is deemed transferred to the borrower would be
characterized as compensation income under section 61(a)(1). I.R.C. § 61(a)(1) (West 1984).
The foregone interest that is deemed re-transferred to the lender “as interest” would be
characterized as interest income under section 61(a)(4). I.R.C. § 61(a)(4) (West 1984).
   

88 ST. THOMAS LAW REVIEW [Vol. 23

below-market rate loans, there is no dearth of new legal fictions. Although

the predominance of positive law may have greatly reduced the need for
common law legal fictions, as if reasoning remains a prime staple of legal
analysis. 125 It will continue to inform the development of judge-made
rules, and it will also feature prominently in legislative and regulatory
initiatives. Recent scholarship has sought to identify new types of legal
fictions and, in so doing, has strained Fuller’s 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.” 126 In this Part, I discuss the classification error raised in
this scholarship and conclude that the so-called new legal fictions can be
more accurately described as empirical legal errors, discredited legal
regimes, and complex statutory schemes. 127
In each case, I believe that these newly identified legal fictions
represent a fundamentally different phenomenon from that described by
Fuller. Many of the new fictions are not fictions in the classic sense
defined by Fuller because either they are not acknowledged to be false or,
in some cases, they are not in fact demonstrably false. 128 As such, they
present a distinct set of concerns that could be more profitably studied as a
separate category.
In addition to this definitional objection, the new categories deny the
basic constitutive power of the law. 129 Before we can speak of fictions, we
must be able to identify the truth. With the exception of the empirical legal
errors discussed in the next section, the new legal fictions do not have a
clear measure of truth or falsity. Even with respect to the empirical errors,
there remain questions of the subjectivity and sufficiency of proof. 130 Both
the discredited legal regimes and the complex statutory schemes illustrate
the self-referential nature of law. To dismiss them as mere legal fictions
 
125. See Smith, supra note 22, at 1470 & n.187. Smith points to the rise of positive law as
corresponding with a decrease in legal fictions. See id. “The postivization of law, and a
revolution against common law formalism, has erased many of the most egregious fictions of the
common law.” See id. at 1470 & n.187.
126. FULLER, supra note 1, at 9.
127. See infra notes 131–346 and accompanying text.
128. See Robert A. Yale, Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law,
17 YALE J.L. & HUMAN. 151, 159–60 (2005) (quoting Maine: “But now I employ the expression
‘Legal Fiction’ to signify any assumption which conceals, or affects to conceal, the fact that a rule
of law has undergone alteration, its letter remaining unchanged, its operation being modified”). It
is arguable that both Maine and Bentham applied a broader definition of fictions. See id.
129. See id. at 160–61.
130. See Smith, supra note 22, at 1446–49.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 89

ignores the nature of juristic truth.

A. EMPIRICAL LEGAL ERRORS

An increased emphasis within legal scholarship on empiricism has

enlivened an important debate regarding the role social science data should
play in the fashioning of normative legal rules. 131 It has also caused legal
scholars to re-examine certain long-standing legal rules and presumptions
in light of existing social science research. 132 The results have been
sobering. 133 For example, empirical evidence roundly contradicts a number
of our stalwart evidentiary rules, including the reliability of eyewitness
testimony, 134 the ability of jurors to disregard testimony, 135 and predictions
of future dangerousness. 136 Such observations raise weighty questions
regarding the relevance of this empirical data, the nature of legal rules, and
the scope of judicial discretion.
Peter J. Smith has produced a comprehensive survey of this
phenomenon, which he refers to as the problem of “new legal fictions.” 137
For clarity, and to differentiate this group from the other “new” legal
fictions discussed in this Essay, I refer to Smith’s category as “empirical
legal errors.” Although Smith recognizes that these empirical legal errors
 
131. See generally Ronald Dworkin, Social Sciences and Constitutional Rights—The
Consequences of Uncertainty, 6 J.L. & EDUC. 3 (1977) (arguing against social science data);
David L. Faigman, “Normative Constitutional Fact-Finding”: Exploring the Empirical
Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 543 (1991) (“The
Constitution’s many broad prescriptions must be interpreted in accordance with various external
guides.”); Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 2–3, 12
(1998) (arguing in favor of an increasing use of social science data); Alexander Tanford, The
Limits of a Scientific Jurisprudence: The Supreme Court and Psychology, 66 IND. L.J. 137, 157,
159–66 (1990) (discussing “fundamentally incompatible normative systems”).
132. See Todd Aagaard, Factual Premises of Statutory Interpretation in Agency Review
Cases, 77 GEO. WASH. L. REV. 366, 420–22 (2009) (discussing “new legal fictions” and factual
premises in agency review cases); see also Criddle, supra note 64, at 1315 (discussing legal
fictions in Chevron agency jurisprudence).
133. See Smith, supra note 22, at 1447–49.
134. See, e.g., id. at 1452–55 (citing “virtually unequivocal data”).
135. See, e.g., Andrew J. Wistrich, Chris Guthrie, & Jeffrey J. Rachlinski, Can Judges Ignore
Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251,
1254–75 (2005) (discussing psychological research).
136. See, e.g., Smith, supra note 22, at 1455 (noting “numerous studies” show such
predictions “unreliable”); Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive
Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1442–44 (2001).
137. See Smith, supra note 22, at 1480–94; see also Josh Bowers, Punishing the Innocent, 156
U. PA. L. REV. 1117, 1121–23 (2008) (proposing that “false” plea bargains for innocent
defendants should be reconceived as legal fictions).
   

90 ST. THOMAS LAW REVIEW [Vol. 23

are different in kind from the legal fictions described by Fuller, he

persuasively uses Fuller’s assessment of the dangers inherent in legal
fictions to condemn the continued use of these empirical legal errors and
argue for greater judicial candor. 138 Specifically, Smith notes that the
utility of a legal fiction “must wane—and its danger correspondingly
wax—as recognition that it is in fact false diminishes.” 139
As identified by Smith, empirical legal errors fall into three general
categories: cognitive processes (e.g., reliability of eyewitness testimony), 140
individual beliefs (e.g., presumption that individuals know the law), 141 and
institutional relationships (e.g., canons of construction relating to presumed
legislative intent). 142 In each instance, Smith marshals considerable social
science data that contradicts the factual suppositions contained in the rules
and presumptions. 143 Although Smith confines his work to judge-created
empirical legal errors, similar observations also could be made with respect
to empirical errors in statutory law. 144
Smith’s empirical legal errors differ from classic legal fictions in two
significant ways. 145 First, even though the empirical legal errors are based
on inaccurate factual premises, they are not generally acknowledged to be
false. 146 Thus, strictly speaking, empirical legal errors would not qualify as
 
138. Smith, supra note 22, at 1480–94 (discussing connection between “new legal fictions”
and judicial candor).
139. Id. at 1467.
140. Id. at 1450–57 (providing examples involving cognitive processes include: limiting
instructions for jurors, the reliability of eyewitness testimony, predictions of future
dangerousness, fraud on the market and the rational economic actor).
141. Id. at 1458–59 (providing examples involving individual beliefs include: custodial
interrogation and freedom to leave and ignorance of the law).
142. Id. at 1460–64 (providing examples of “new legal fictions” related to institutional
relationships including canons of statutory construction, theories of legislative intent, and
constitutional originalism).
143. Id. at 1472–78 (providing a number of explanations for why courts employ these new
fictions despite the existence of empirical evidence that refutes the premise of the fiction). These
explanations include: ignorance, institutional constraints on the consideration of empirical
evidence, and attempts to conceal normative choices. Id.
144. See Smith, supra note 22, at 1469 (providing support for the illustration in the preceding
section, however, common law and statutory legal fictions raise different institutional concerns).
Speaking of judge-made legal functions, Smith notes: “Like the classic legal fictions that
Bentham so despised, new legal fictions are sometimes a device that judges deploy to mask the
fact that they are arrogating to themselves the power to make normative choices, and thus to make
law itself.” See id.
145. See generally Fuller, supra note 1, at 9 (providing classic definition of legal fictions).
146. Smith, supra note 22, at 1470. Smith acknowledges that “new legal fictions” are
different in kind from classic legal fictions. Smith writes:
For new legal fictions . . . there generally is no recognition of the fact that the premise
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 91

legal fictions according to Fuller 147 because they are not transparently
false. 148 Under Fuller’s construction, a legal fiction that is believed is not
only dangerous, but it ceases to be a legal fiction. 149
Secondly, the empirical legal errors present a different calculus of
utility. As described by Smith, empirical legal errors are generally valued
for their presumed veracity. 150 Thus, when an empirical legal error is
revealed, it ceases to have any primary utility. 151 For example, a conviction
based on the unquestioned strength of eyewitness testimony is not premised
on the agreed upon fiction that eyewitness testimony is reliable. 152 It rests
on the belief that the witness reliably identified the defendant. 153 If that
belief turns out to be mistaken, then the rules governing the admissibility of
eyewitness testimony have no direct utility and should be abandoned or
modified. This differs from classic legal fictions, which are considered to
have utility despite their falsity. 154
Indeed, this disjunction between truth and utility is the defining

 
is false, although the assertions need not consciously be intended to deceive. Indeed,
what characterizes most new legal fictions is that the learned reader of the law would
not have explicit or implicit indication that the court is simply deeming to be true that
about which we know otherwise. In addition, new legal fictions are not simply a
device for softening (or, depending on one’s perspective, obscuring) the effects of
legal change—that is, departure from a regime already established—but rather are
instrumental in justifying doctrine, whether received or newly established.
Id. (emphasis in original).
147. See Fuller, supra note 1, at 9 (providing classic definition of legal fictions).
148. See Smith, supra note 22, at 1470 (noting there generally is no recognition that the
premise of the statement is empirically false).
149. Fuller, supra note 1, at 9–10. According to Fuller, “[a] fiction taken seriously, i.e.,
‘believed,’ becomes dangerous and loses its utility.” Id. Once a fiction loses utility, “[i]t ceases
to be a fiction under either alternative of [Fuller’s classic] definition.” Id.
150. Smith, supra note 22, at 1441. Smith provides the following definition:
A court deploys a new legal fiction when (1) the court offers an ostensibly factual
supposition as a ground for creating a legal rule or modifying, or refusing to modify,
an existing legal rule; and (2) the factual supposition is descriptively inaccurate. In
most cases, the premise is false because empirical research has demonstrated that it is
false, although occasionally the factual supposition so conflicts with general
knowledge and conventional wisdom that it can be characterized as a new legal
fiction even without reference to empirical research. To be a new legal fiction, the
court must offer the factual supposition as a (or the) basis supporting the court’s
normative choice among competing possible legal rules.
Id.
151. See id. at 1485–94 (identifying a number of secondary considerations that may produce
utility).
152. Id. at 1452–55, 1476.
153. See id. at 1453–54.
154. See Fuller, supra note 1, at 9.
   

92 ST. THOMAS LAW REVIEW [Vol. 23

feature of a legal fiction. 155 It is at the heart of the conundrum that has
occupied legal scholars for centuries, namely: how can a legal fiction retain
its utility despite its acknowledged falsity? 156 The empirical legal errors
fail on both counts of transparency and utility, and, therefore raise a
separate and distinct set of concerns. 157 Even without reference to Fuller’s
warning about the danger of fictions, it would seem that one could make a
strong case in favor of exposing the factual inaccuracies that underlie
Smith’s empirical legal errors. 158 As defined by Smith, a legal rule that is
mistakenly based on a demonstrably false factual supposition is a legal
fiction. 159
I would suggest that a legal rule that rests on an empirical mistake
demands correction regardless of its label, and there is arguably little
benefit to insisting that it is a legal fiction as understood by Fuller. The
category of empirical legal error envisioned by Smith, however, does have
direct relevance to classic legal fictions insofar as it underscores important
questions regarding the subjectivity and sufficiency of proof of truth or
falsity. 160 Given that any discussion of fictions necessarily implies an
understanding of truth, it is essential to identify the appropriate measure of
truth.
For empirical legal errors (i.e., false factual suppositions that underlie
legal rules and presumptions), the relevant measure of truth is “descriptive
reality” as distilledf through social science data. 161 However, even when
the appropriate measure is identified, it is not clear under what
circumstances a factual supposition can be definitively declared to be false.
As Fuller explained:
 
155. See id.
156. See Vaihinger, supra note 5, at 33–35.
157. See, e.g., Brian G. Slocum, Overlooked Temporal Issues in Statutory Interpretation, 81
TEMP. L. REV. 635, 654 (2008) (referring to two of Smith’s “new legal fictions” as “legal
fictions”). Empirical legal errors may be like classic legal fictions, but they are not actually
classic legal fictions. See id. It is a fiction to say otherwise. See id. Smith is clear on this point.
However, other scholars have used Smith’s definition “new fictions” more broadly. See id.
158. See Smith, supra note 22, at 1467 (“If a legal fiction is a false statement not intended to
deceive, then its utility must wane - and its danger correspondingly wax - as recognition that it is
in fact false diminishes.”). Essentially, Smith revises Fuller’s identification of the inverse
relationship between the acknowledged falsity of a legal fiction and its danger. Id.
159. Id. at 1471–72.
160. See id. at 1445 (“[I]t is often difficult to claim that a factual supposition on which a legal
rule is based is false without reference to some other measure of descriptive reality.”).
161. Id. at 1445 (“To identify a new legal fiction, it is usually necessary to refer to empirical
research; after all, it is often difficult to claim that a factual supposition on which a legal rule is
based is false without reference to some other measure of descriptive reality.”).
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 93

The truth of any given statement is only a question of its adequacy. No

statement is an entirely adequate expression of reality, but we reserve
the label “false” for those statements involving an inadequacy that is
outstanding or unusual. The truth of the statement is, then, a question
of degree. 162
Take for example, two empirical legal errors identified by Smith: the
reliability of eyewitness testimony and the determination of when an
interrogation is custodial. 163 In the case of eyewitness testimony, Smith
reports that “virtually unequivocal data . . . challenges the presumption that
jurors are competent to assess the reliability of eyewitness testimony.” 164
By any measure, this sounds like compelling evidence sufficient to
contradict the long-standing factual supposition that expert testimony is not
necessary to explain the (un)reliability of eye witness testimony. 165 Smith
presents a very different case with respect to the question of when Miranda
warnings are necessary and notes that “informal surveys of students and
common sense tend to suggest that most people, including most lawyers, do
not feel free to leave when the police seek to ask them questions.” 166
It is not at all clear that this quantum of proof should be sufficient to
warrant a determination that the factual supposition underlying the rules
governing custodial interrogations is demonstrably false. Moreover, when
dealing with a reasonable person standard, it is not clear what level of
consensus should be required in order to constitute a reasonable person or
when the construction of the reasonable person is, by design,
aspirational. 167
Classical legal fictions, on the other hand, more often consist of a
false statement relating to the individual facts of the case, rather than the
applicable law. 168 Therefore, the distinction between classical legal fictions
 
162. FULLER, supra note 1, at 10.
163. See Smith, supra note 22, at 1452–55, 1458–59.
164. Id. at 1453.
165. See id. at 1454.
166. Id. at 1458.
167. See id. at 1478. Also, there are no doubt instances where the reasonable person is
admittedly aspirational, as would be the case with ignorance of the law. Id. (“The conventional
policy justification for the rule is that it creates an incentive for citizens to learn their legal
obligations.”).
168. Id. at 1468–69 (explaining that classic legal fictions pertain to adjudicative facts rather
than legislative facts). Where the statement goes to an ultimate fact of the case, such as the
defendant’s guilt or innocence, it may not be possible to determine whether the statement is
indeed false. Id. at 1468 (“A court deploying a classic legal fiction generally would deem some
fact particular to the controversy . . . to have occurred, even though in reality it had not.”). This
would be the case with plea bargains. See Bowers, supra note 137, at 1121 (arguing false plea
   

94 ST. THOMAS LAW REVIEW [Vol. 23

and empirical legal errors, at least to some extent, can be expressed in

terms of the traditional split between fact and law. 169 For many classic
legal fictions, the appropriate measure of the truth is simply the facts of the
case. With respect to the customary false jurisdictional statements, there
was no trespass in the county of Middlesex nor any debt owed the
Crown. 170 In the case of in rem civil forfeiture proceedings, no one
involved believes for one moment that the inanimate object named as the
defendant sprang to life, like the teapot in Disney’s Beauty and the Beast,
and cooked up a pound of methamphetamine. 171
In other instances, it might not be clear whether the legal fiction is a
factual statement accepted to be false or actually an empirical error of fact
that mistakenly justifies a rule of law. 172 In the latter case, the error should
be revealed and the rule modified. In the former case, the fiction will be
maintained to the extent it has continued utility. One example of this
ambiguity would be the doctrine of the fertile octogenarian applied in the
context of the dreaded Rule Against Perpetuities. 173 The relevancy of the
 
bargains should be viewed as legal fictions).
169. See Smith, supra note 22, at 1468 (“Classic legal fictions generally pertained to
adjudicative facts.”); see also Stolzenberg, supra note 24, at 231–36 (discussing Bentham’s view
of the distinction between fact and fiction). But see Ronald J. Allen & Michael S. Pardo, The
Myth of the Law-Fact Distinction, 97 NW. U.L. REV. 1769, 1771 (2003) (rejecting fact/law
distinction).
170. See supra notes 53–56 and accompanying text (describing these jurisdictional legal
fictions).
171. See, e.g., One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 233 (1972);
Various Items of Pers. Prop. v. United States, 282 U.S. 577, 581 (1931); United States v. One
1983 Homemade Vessel Named “Barracuda,” 858 F.2d 643, 644–45 (11th Cir. 1988); United
States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1540 (11th Cir. 1987); United States v.
U.S. Treasury Bills Totaling $160,916.25, 750 F.2d 900, 901 (11th Cir. 1985); United States v.
One 1976 Porsche 911S, 670 F.2d 810, 811–12 (9th Cir. 1979); United States v. One 1963
Cadillac Coupe de Ville Two Door, 250 F. Supp. 183, 186 (W.D. Mo. 1966).
172. Some classic legal fictions are very upfront about their nature and signal their falsity in
their very structure. This is the case with the as if fictions that are often preceded by the term
“constructive” or “implied.” See FULLER, supra note 1, at 22–23. Fuller colorfully referred to
these signals as “the badge of [the fiction’s] shame. Id. at 23 (“It is not significant that each
carries still the badge of its shame – the apologetic ‘constructive’ or ‘implied.’”). Fuller noted
that a similar semantic tic was common among the Roman fictiones, which often “carried a
grammatical acknowledgement of [their] falsity.” Id. at 36. He called these fictions “apologetic
fictions.” Id. at 23.
173. See Jee v. Audley, 29 E.R. 1186 (Ch. 1787) (referring to a classic example of the
application of the fertile octogenarian doctrine); see also Dukeminier, supra note 15, at 1876
(referring to the fertile octogenarian rule as “one of the strangest aberrations of the legal mind”).
Dukeminier expresses the rule of the fertile octogenarian as follows: to A for her life, and then to
the first of A’s children to reach 25 years of age. Id. at 1876–78. In other words, if A is 85 at the
time the interest is created, then, under the rule, A could bear a child the following year at age 86
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 95

rule has declined in recent years as states have either replaced, or have
significantly reduced, the opportunity for the arbitrary application of the
Rule Against Perpetuities. 174 Despite my admitted fondness for the fertile
octogenarian, I no longer teach it in my Property course.
Simply put, in its strictest terms, the Rule Against Perpetuities voids,
ab initio, certain executory or contingent interests where the interest could
fail to vest within a life in being plus twenty-one (21) years. 175 The
madcap judicial interpretations surrounding this old common law rule have
been the Property student’s bane of existence for several generations. 176
Over the years, it has provided favorites such as the slothful executor, 177 the
magic gravel pit, 178 and the unborn widow. 179 The application of the Rule
Against Perpetuities was considered so complicated that the California
Supreme Court famously held that it was not malpractice for a lawyer to
misinterpret the rule. 180
Without dwelling on the mechanics of a near obsolete rule of law, the
doctrine of the fertile octogenarian conclusively presumes that an
individual is capable of bearing children regardless of age or physical
infirmity. 181 In support of this proposition, the commentators referenced
the Biblical story of Sarah who conceived a child at ninety years of age. 182
That said, is this dubious rule, which was first propounded in the
 
and then die the next year. Under these facts, the child, who was not a life in being at the creation
of the interest, would reach twenty–five years of age beyond the perpetuities period. See id. at
1876. Accordingly, the interest would be void because it could conceivably not vest within the
mandated “lives in being plus twenty-one years.” Id. at 1868.
174. See Stewart E. Sterk, Jurisdictional Competition to Abolish the Rule Against
Perpetuities: R.I.P for the R.A.P., 24 CARDOZO L. REV. 2097, 2097 (2003).
175. See JOHN CHIPMAN GRAY, THE RULE AGAINST PERPETUITIES 191 (Roland Gray ed., 4th
ed. 1942). John Chipman Gray offered the classic statement of the modern Rule Against
Perpetuities: “no interest is good unless it vests or fails within a life in being plus 21 years.” Id.
176. See Maureen E. Markey, Ariadne’s Thread: Leading Students Into and Out of the
Labyrinth of the Rule Against Perpetuities, 54 CLEV. ST. L. REV. 337, 340 (2006).
177. See, e.g., Richards v. Tolbert, 232 Ga. 678, 678 (1974) (approving admission of will to
probate over fifty years after testator’s death); In re Estate of Campbell, 28 Cal. App. 2d 102, 103
(1938) (voiding gift to be made upon distribution of estate).
178. See In re Wood, 3 Ch. 381, 382–83 (1894).
179. Several states have abolished the unborn widow rule by statutes that presume any gift to
a spouse to be to a person in being. See, e.g., FLA. STAT. § 689.22 (5)(b) (repealed 1988)
(emphasis added).
180. See Lucas v. Hamm, 56 Cal. 2d 583, 592–93 (Cal. 1961). But see Wright v. Williams, 47
Cal. App. 3d 802, 809 n.2 (1975) (questioning holding of Lucas v. Hamm “in today’s state of the
art”).
181. See Walton v. Lee, 634 S.W.2d 159, 160–61 (Ky. 1982) (applying conclusive
presumption of fertility).
182. See Genesis 17:15–19.
   

96 ST. THOMAS LAW REVIEW [Vol. 23

Eighteenth Century, appropriately understood as a fiction, or is it an

empirical legal error? 183 The rule would only be an empirical legal error if
the Master of the Rolls had mistakenly thought the presumption of
unlimited procreative ability was true. 184 If not, then the presumption is
understood as false and would function as a bright line rule enabling jurists
to avoid individual determinations regarding fertility. 185
In the seminal case of Jee v. Audley, Sir Lloyd Kenyon rejected such
individual determinations of fertility calling them “a very dangerous
experiment, and introductive of the greatest inconvenience to give a
latitude to such sort of conjecture.” 186 Today, the rule of the fertile
octogenarian is understood as a bright line rule that is applied despite its
obvious falsity. 187 As such, it is a legal fiction in the classic sense of the
term.

B. DISCREDITED LEGAL REGIMES

The preceding section concentrated on the specifics of the law–those

verifiable factual suppositions that sometimes support and justify legal
rules. This section shifts our attention from accuracy of individual details,
to the legitimacy regarding comprehensive legal regimes such as slavery
and the doctrine of discovery. Over the last twenty years, legal scholarship
has greatly benefited from a number of multi-disciplinary interventions;
specifically, the law and literature movement has particular relevance to
our discussion of legal fictions. 188 The emphasis on law as literature has
introduced legal audiences to the important concepts of narrative,
interpretation, and critique. Within this area of expertise, the legal fiction

 
183. See Jee v. Audley, 29 E.R. 1186, 1186 (Ch. 1787). Jee v. Audley was decided by Sir
Lloyd Kenyon, Master of the Rolls of the Court of Chancery in 1787. “The Master of the Rolls,
originally keeper of the chancery records, [later] became the chief deputy of the Lord
Chancellor.” Id. at 1188 n.1, available at
http://www.uchastings.edu/site_files/facultywebs/massey/JeevAudley.pdf.
184. See supra notes 158–61 and accompanying text (discussing what constitutes an empirical
legal error).
185. See infra note 187 and accompanying text.
186. 29 E.R. 1186, 1188 (Ch. 1787).
187. See RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS §1.4 cmt. h (1983).
188. See, e.g., JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE,
LAW AND POLITICS (1994); Robert M. Cover, Nomos and Narrative, 97 HARV. L. REV. 4 (1983);
ROBIN WEST, NARRATIVE, AUTHORITY, AND LAW (1993). In addition, our discussion of both
slavery and the doctrine of discovery necessarily involves the discipline of history. See Ariela
Gross, Beyond Black and White: Cultural Approaches to Race and Slavery, 101 COLUM. L. REV.
640, 640 (2001) (discussing legal history and cultural history).
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 97

would seem to have obvious appeal because it knowingly incorporates a

work of imagination (i.e., temporally counterfactual events) into the law.
That being said, the concept of the legal fiction is relatively under-
theorized within the field of law and literature. 189 It has, however, become
relatively common to apply the term “legal fiction” to discredited legal
regimes, specifically slavery and the doctrine of discovery. 190 In many
instances, this naming occurs without an express discussion of the
definition of a legal fiction. 191 Aviam Soifer presaged this trend when, in
1986, he wrote that “[i]n our post-realist world, however, our sense is that
legal fictions are not some small, awkward patch but rather the whole
seamless cloth of the law.” 192
On one hand, it is quite satisfying to dismiss these past legal regimes
as mere fictions. In the case of slavery, and later Jim Crow, we can
confidently say that they lacked the staying power of moral truth. 193 But, is
it appropriate, or even accurate, to label as a mere legal fiction a
comprehensive system of oppression and subordination that persisted for
hundreds of years? Does hindsight really lead us to regard slavery as
equivalent to the fertile octogenarian? If one applies Fuller’s definition of
a legal fiction, it is difficult to see how these discredited legal regimes
qualify. They were neither acknowledged to be false at their time of
adoption, nor are they demonstrably false without resort to abstract
principles of natural law.
Despite the fact that the classic definition of legal fiction does not
seem to apply, 194 legal scholars casually refer to slavery as a “legal
fiction.” 195 Indeed, race itself is sometimes expressed as a “fiction.” 196
 
189. See Camden and Fort, supra note 32, at 85 (“A subset of law and literature not often
addressed is that of legal fictions.”).
190. See ACCOMANDO, supra note 32 (referring to slavery as a legal fiction); see also Camden
and Fort, supra note 32 (referring to doctrine of discovery as a legal fiction). From a more
contemporary standpoint, one could argue that the gender binary represents a “legal fiction.”
191. See, e.g., Ruth Wedgewood, The South Condemning Itself: Humanity and Property in
American Slavery: A Review of Andrew Fede, PEOPLE WITHOUT RIGHTS, 68 CHI.-KENT L. REV.
1391, 1392 (1993) (referring to “slaves as property” as a “legal fiction”).
192. Soifer, supra note 29, at 876.
193. See FULLER, supra note 1, at 9.
194. See id. (providing a classic definition of legal fictions).
195. See, e.g., Judge James A. Wynn, Jr., Thomas Ruffin and the Perils of Public Homage:
State v. Mann Judicial Choice or Judicial Duty, 87 N.C. L. REV. 991, 992 (2009) (referring to
“the legal fiction of slaves as insensible property, unworthy of any sort of protection from their
owners regardless of the form of cruelty or barbarity employed”); Ariela J. Gross, Litigating
Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109,
129 (1998) (noting the judge “knew only too well, those ‘pretty little mulattoes’ were most likely
   

98 ST. THOMAS LAW REVIEW [Vol. 23

This trend is also evident in other fields such as history and literary
criticism. 197 For example, when the noted historian Eugene Genovese
referred to the “preposterous legal fictions” that supported slavery, he was
talking about the central tenet of the slave system, namely “the treatment of
slaves as chattel.” 198 Christina Accomando, professor of English and
Ethnic Studies, addresses the legal and political fictions of slavery in her
book, The Regulations of Robbers: Legal Fictions of Slavery and
Resistance, 199 and has classified as a “legal fiction” the entire body of slave
“[l]aws governing legal testimony, racial identity, literacy, miscegenation,
rape, and reproduction.” 200
Certainly, the inherent tension in slave law between conceptions of
liberty and property led to the creation of some convoluted legal fictions;
however, these fictions and inconsistencies largely existed on the edges of
slave law. 201 They did not go to the ultimate hegemonic practice of
 
‘one of the family’, but it was a legal fiction to be preserved at all costs that black people were
slaves and white people were free.”); Roger J. Kaczorowski, Revolutionary Constitutionalism in
the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 871 n.26 (1986)
(“[A]lthough slaves possessed few legal rights, treatment of slaves as chattel was largely legal
fiction; they were, in practice, granted certain rights”); Wedgewood, supra note 191, at 1392
(“Tucker worried that white Southerners would mistake legal fiction for moral fact, thinking of
slaves as property, excluding them from any claim of human right”).
196. See IAN F. HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 102
(1996) (“[R]ace is not a measured fact, but a preserved fiction . . . race is a matter not of physical
difference, but of what people believe about physical difference.”); see also Soifer, supra note 29,
at 892. Soifer provides a discussion of the “fictions” contained in the Slaughter-House Cases and
the Civil Rights Cases. See id. (“Taken case by well-known case, decisions such as those in the
Slaughter-House Cases and the Civil Rights Cases seem illogical. Yet for all their peculiarities,
their fictions have become crucial links in mainstream constitutional law.”).
197. See, e.g., EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES
MADE 30 (1974).
198. Id. (“The South had discovered, as had every previous slave society, that it could not
deny the slave’s humanity, however many preposterous legal fictions it invented.”).
199. ACCOMANDO, supra note 32, at 4 (“[L]egal fictions of American slavery tell us that
slaves and African Americans had no legal or political voice.”).
200. Christina Accomando, The Laws Were Laid Down to me Anew: Harriet Jacobs and the
Reframing of Legal Fiction, AFR. AM. REV. (1998),
http://findarticles.com/p/articles/mi_m2838/is_n2_32/ai_21059953/. Accomando writes that the
law:
[D]efined slaves and African Americans in specific yet contradictory ways – as
nonhuman, with dangerous sexuality and nonexistent subjectivity. These legal and
political fictions were just that – constructed fictions – but they have had tremendous
power. Analyzing legal, political, and literary discourses of slavery can help
deconstruct these fictions and their power (which did not vanish with emancipation).
Id.
201. See Cheryl I. Harris, Finding Sojourner’s Truth: Race, Gender, and the Institution of
Property, 18 CARDOZO L. REV. 309, 311–12 (1996). With respect to the inherent inconsistencies
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 99

enslavement and subordination on the basis of legally constructed racial

difference. 202 An example of a classic legal fiction existing within slave
law was the procedural posture assumed in the so-called “freedom suits.” 203
In order for the case to proceed, the plaintiff was presumed to be free, even
though the determination of freedom was the ultimate question of the
case. 204 If we are going to credibly maintain that slavery, or the doctrine of
discovery, is a legal fiction, then there must be an available measure of
truth or falsity. The empirical legal errors discussed in the preceding
section explicitly incorporated statements of fact that were readily
verifiable by reference to real world events, such as the evidentiary rules
governing the reliability of eye witness testimony. 205 However, the legal
systems of slavery, and the doctrine of discovery necessarily encompass
abstract concepts such as liberty and sovereignty that are not provable in
any conventional sense of the term. 206
An appeal to natural law principles would reveal that slavery is
morally wrong and, indeed, contrary to the first principles of any just
society. 207 However, is the determination that slavery is morally wrong
equivalent to a finding of falsity? 208 Whereas the reliability of eyewitness
testimony is subject to external verification, the legal regime of slavery is
not provable or disprovable by reference to empirical evidence. 209 It stands
 
of slave law, Cheryl Harris writes: “Slavery has long been acknowledged as a highly unstable
legal regime which managed the central contradiction of human property—thinking, breathing
property—through the concept of race and the ideology of white supremacy.” Id. at 311–12; see
also Walter Johnson, Inconsistency, Contradiction, and Complete Confusion: The Everyday Life
of the Law of Slavery, 22 LAW & SOC. INQUIRY 405, 422 (1997).
202. See Harris, supra note 201, at 312.
203. Paul Finkelman, “Let Justice Be Done, Though the Heavens May Fall”: The Law of
Freedom, 70 CHI.-KENT L. REV. 325, 332 (1994) (explaining that suits for freedom “always
proceeded through the legal fiction that the plaintiff (slave) was already free . . . usually in the
form of a claim for civil damages for assault, battery, or false imprisonment”).
204. See Paul Finkelman, Was Dred Scott Correctly Decided? An “Expert Report” for the
Defendant, 12 LEWIS & CLARK L. REV. 1219, 1228 (2008). Finkelman explains:
Southern state courts regularly accepted a legal fiction that the plaintiff was ‘free’ and
therefore had standing to sue. If the court ultimately ruled against the slave plaintiff,
the jurisdictional issues disappeared because the defendant continued to own the
slave. This is in fact what had happened in Dred Scott’s cases in Missouri.
Id. at 1228.
205. See Smith, supra note 22, at 1441–42.
206. See FULLER, supra note 1, at 9.
207. See Hernandez, supra note 40, at 698.
208. See Francis Jennings, Conquest and Legal Fictions, 23 OKLA. CITY U. L. REV. 141, 142
(1998) (stating discovery “remains a legal fiction to the present day despite its long-exposed
falseness to well-documented facts”).
209. See Smith, supra note 22, at 1438–39.
   

100 ST. THOMAS LAW REVIEW [Vol. 23

simply as a juristic truth. Slavery was a fact, not a fiction. 210

As with slavery, some scholars refer to the entire doctrine of
discovery and its resulting Native American land policy as a “legal
fiction.” 211 The doctrine of discovery, as announced in Johnson v.
M’Intosh, justified title to all land in the United States by reference to the
“principle . . . that discovery gave title to the government by whose
subjects, or by whose authority, it was made.” 212 The first of the so-called
Marshall trilogy, 213 the consequences of Johnson were far-reaching. The
legal doctrine of discovery and conquest established a clear chain of title to
all land in the United States. 214 Johnson also had the effect of permanently
dispossessing Native Americans from their land. 215
In many first-year Property courses, including my own, Johnson v.
M’Intosh is the first assigned case. 216 The facts of the case are exceedingly
 
210. See Jennings, supra note 208, at 142.
211. See, e.g., William Bradford, Beyond Reparations: An American Indian Theory of Justice,
66 OHIO ST. L.J. 1, 9 n.39 (2005) (“The international legal fiction of ‘discovery’ bestowed
occupancy and exclusive negotiating rights to impair the title of a ‘discovered’ Indian nation upon
a so-called discovering European nation.”); Julie Ann Fishel, United States Called to Task on
Indigenous Rights: The Western Shoshone Struggle and Success at the International Level, 31
AM. INDIAN L. REV. 619, n.41 (2006/2007) (referring to doctrine of discovery as “the legal fiction
expressed by Chief Justice Marshall in the Johnson ruling”); Laura Nader & Jay Ou, Idealization
and Power: Legality and Tradition in Native American Law, 23 OKLA. CITY U. L. REV. 13, 19
(1998). Nader and Ou observed that:
Nowhere is the legal fiction and ambiguity more prevalent than in Supreme Court
cases concerning Indian sovereignty . . . . [I]n Johnson v. M’Intosh, Marshall held that
the United States had preeminent sovereignty over its claimed territory by virtue of
the doctrine of ‘Discovery’ and the rights of ‘Conquest.’
Id.
212. Johnson v. M’Intosh, 21 U.S. 543, 573 (1823).
213. See Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 82 N.D. L. REV. 627,
627 n.2 (2006) (citing CHARLES F. WILKINSON, AMERICAN INDIANS, TIME AND THE LAW:
NATIVE SOCIETIES IN A MODERN CONSTITUTIONAL DEMOCRACY 24 (1987)). The other two
cases in the trilogy are Cherokee Nation v. United States, 30 U.S. (5 Pet.) 1 (1831), and
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
214. See Camden and Fort, supra note 32, at 79 (“Johnson, creates the legal fiction of
discovery and conquest to ensure a smooth chain of title⎯and permanently dispossess tribes of
full title to their land in Anglo-American courts.”).
215. See id.
216. Id. at 86 (“The case is still taught in first-year property classes, often as the first case.”).
Camden and Fort note that three Property casebooks include Johnson as the first case. Id. at 86
n.59. These casebooks are: JON W. BRUCE & JAMES W. ELY JR., MODERN PROPERTY LAW 2
(6th ed. 2007); JESSE DUKEMINIER, JAMES E. KRIER, GREGORY S. ALEXANDER & MICHAEL H.
SCHILL, PROPERTY 3 (6th ed. 2006); JOSEPH SINGER, PROPERTY LAW: RULES, POLICIES AND
PRACTICES 3 (4th ed. 2006). A number of other Property casebooks include Johnson in the first
chapter. See Camden and Fort, supra note 32, at 86. Camden and Fort single out the Singer
casebook for its thoughtful treatment of the case and Native American law generally. See id. at
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 101

difficult to master and require some familiarity with colonial history. 217
The chain of events starts during the reign of James I in 1609 and gets
increasingly complicated with the passage of time as sovereigns come and
go and parties die. 218 My students are often confused by the procedural
posture of the case, the length of time that had elapsed from the date of first
purchase, and the sheer expanse of land involved. 219
Lindsay Robertson’s comprehensive study of the Johnson decision,
Conquest by Law, does an excellent job of unraveling the facts leading up
to the case and indentifying the competing interests involved. 220 Robertson
also points out that the entire case was actually based on a procedural legal
fiction. 221 The plaintiff brought a suit in ejectment that required the
averment of a complex legal fiction involving a tenant who was driven
from the land by force at the hands of a “casual ejector.” 222 This
procedural fiction, however, is not what commentators mean when they
refer to the legal fictions imbedded in the Johnson decision. 223
Johnson is a challenging case to read on the first day of Property
class. Although students are generally aware of charges that the European
powers “stole” the land from the Native Americans, they are surprised to
see the common law producing legal precedent to justify the Europeans’
claims of ownership. 224 For some students, the language used in the
decision to describe Native Americans is also difficult to read. Later in the
course, we compare Justice Marshall’s construction of “fierce savages” 225
 
94–95.
217. See Johnson, 21 U.S. at 543. There were 24 points of agreed upon facts. Id. Lindsay
Robertson explains that the parties agreed upon the facts prior to the case to simplify the
proceedings. See LINDSAY G. ROBERTSON, CONQUEST BY LAW: HOW THE DISCOVERY OF
AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS 54 (2005) (discussing how
pleadings in Johnson were based on a legal fiction).
218. See ROBERTSON, supra note 217, at 159–61.
219. See Johnson, 21 U.S. at 543; ROBERTSON, supra note 217, at 159–61. Robertson
describes the land in question as “43,000 square miles of lush, rolling farmland commanding the
junctures of four major river systems in Indiana and Illinois.” Id. at 4.
220. ROBERTSON, supra note 217, passim.
221. Id. at 54 (discussing how pleadings in Johnson were based on a legal fiction).
222. Id.
223. Camden and Fort, supra note 32, at 88 (“However, when scholars refer to the legal
fiction of Johnson v. M’Intosh, they usually are not referring to the type of case brought.”).
224. See ROBERTSON, supra note 217, at 4 (“In Johnson v. M’Intosh, the Supreme Court
announced the so-called discovery doctrine, which provided that, upon discovery of the continent,
European sovereigns acquired title to all ‘discovered’ lands, while indigenous people retained
only an ‘occupancy’ right that could be transferred only to the discovering sovereigns.”).
225. Johnson v. M’Intosh, 21 U.S. 543, 590 (1823) (“But the tribes of Indians inhabiting this
country were fierce savages, whose occupation was war, and whose subsistence was drawn
   

102 ST. THOMAS LAW REVIEW [Vol. 23

who were unable to be “blended with the conquerors or safely governed as

a separate people” 226 with Justice Taney’s description in Dred Scott v.
Sandford of “beings of an inferior order” 227 who are unable “to become a
member of the political community.” 228
Although I understand the urge to dismiss these judicial constructions
of the racial other as legal fictions, I am concerned that the term is used too
freely and without regard to its traditional definition. A legal fiction,
according to Fuller, is wholly safe and has utility only when its falsity is
openly acknowledged and understood by all. 229 We can certainly disprove
Justice Taney’s statement regarding “beings of an inferior order,” but the
appropriate question is whether Justice Taney understood that statement to
be untrue when Dred Scott was decided?
Far from offering a fictional account of race, Justice Taney went to
great lengths to establish that the views expressed in his majority opinion
represented the conventional wisdom at the time of the Founders. 230 This
exercise was necessary to establish the original intent behind the term
“citizen.” 231 Rather than deliberately deploying a legal fiction, Justice
Taney claimed that he was describing the historical understanding of the
 
chiefly from the forest.”).
226. Id. at 589–90. The Johnson Court noted that in the normal course of events, the
conquered would be “blended” into society:
When the conquest is complete, and the conquered inhabitants can be blended with
the conquerors, or safely governed as a distinct people, public opinion, which not
even the conqueror can disregard, imposes these restraints upon him; and he cannot
neglect them without injury to his fame, and hazard to his power.
Id. at 590.
227. Scott v. Sandford, 60 U.S. 393, 407 (1856) (“[A]ltogether unfit to associate with the
white race, either in social or political relations; and so far inferior, that they had no rights which
the white man was bound to respect; and that the negro might justly and lawfully be reduced to
slavery for his benefit.”).
228. Id. at 403. The majority framed the question presented as:
The question is simply this: Can a negro, whose ancestors were imported into this
country, and sold as slaves, become a member of the political community formed and
brought into existence by the Constitution of the United States, and as such become
entitled to all the rights, and privileges, and immunities, guarantied [sic] by that
instrument to the citizen?
Id.
229. See FULLER, supra note 1, at 9 (discussing the classic definition of a legal fiction).
230. See Scott, 60 U.S. at 409 (“We refer to these historical facts for the purpose of showing
the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted.”).
231. Id. at 411 (discussing the term “citizen”). Justice Marshall points to the Fugitive Slave
clause and the clause limiting the slave trade to support his conclusion: “But there are two clauses
in the Constitution which point directly and specifically to the negro race as a separate class of
persons, and show clearly that they were not regarded as a portion of the people or citizens of the
Government then formed.” Id.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 103

social, political, and legal standing of individuals of African descent. 232

The full passage reads:
[Individuals of African descent] had for more than a century before
been regarded as beings of an inferior order, and altogether unfit to
associate with the white race, either in social or political relations; and
so far inferior, that they had no rights which the white man was bound
to respect; and that the negro might justly and lawfully be reduced to
slavery for his benefit. He was bought and sold, and treated as an
ordinaryarticle of merchandise and traffic if a profit could be made by
it. 233
Certainly, my students are right to dismiss this passage as “racist
ramblings” 234 that reflect a shameful period in United States history, and it
is important to be conscious of our legacy of racial slavery and the
legitimizing role played by Anglo-American property law. 235 However, it
is dangerous to dismiss these hateful sentiments as a mere fiction. These
“ramblings” carried the force of law. They set forth the rationale for the
enslavement and subordination of an entire class of people. Even if we
believe that Justice Taney’s decision is filled with detestable racist lies, his
lies are not necessarily legal fictions because when one employs a legal
fiction, there is no intent to deceive. 236
Returning for a moment to the Johnson case, 237 we can see another set
of “racist ramblings” 238 concerning the “character and habits” of Native
Americans. 239 In Johnson, Justice Marshall provided the following
 
232. See id. at 407. Justice Taney asserted that this view was “universal.” Id. Justice Taney
further stated:
This opinion was at that time fixed and universal in the civilized portion of the white
race. It was regarded as an axiom in morals as well as in politics, which no one
thought of disputing, or supposed to be open to dispute; and men in every grade and
position in society daily and habitually acted upon it in their private pursuits, as well
as in matters of public concern, without doubting for a moment the correctness of this
opinion.
Id.
233. Id.
234. Camden & Fort, supra note 32, at 107 (suggesting that today Justice Marshall’s opinion
can be seen “as racist ramblings about the role of Indians and their land.”)
235. See Harris, supra note 201, at 343–53 (discussing institution of Property law and its role
in subordination of both slaves and white women).
236. See FULLER, supra note 1, at 6; see also Scott v. Sandford, 60 U.S. 393, 407 (1856). For
example, Justice Taney may have committed an empirical error when he states, “[t]his opinion
was at that time fixed and universal in the civilized portion of the white race.” Id.
237. Johnson v. M’Intosh, 21 U.S. 543, 543 (1823).
238. Camden and Fort, supra note 32, at 107.
239. Johnson, 21 U.S. at 589. (“Although we do not mean to engage in the defence [sic] of
those principles which Europeans have applied to Indian title, they may, we think, find some
   

104 ST. THOMAS LAW REVIEW [Vol. 23

description of Native Americans as:

[F]ierce savages, whose occupation was war, and whose subsistence
was drawn chiefly from the forest. To leave them in possession of
their country, was to leave the country a wilderness; to govern them as
a distinct people, was impossible, because they were as brave and as
high spirited as they were fierce, and were ready to repel by arms every
attempt on their independence. 240
Instead of dismissing the entire doctrine of discovery as a legal
fiction, some commentators have taken issue with the individual errors that
Justice Marshall repeated in the Johnson opinion about Native
Americans. 241 Specifically, Justice Marshall incorporates Lockean views
of investment and labor to suggest that that Native Americans could not
own the land because they did not cultivate it and merely “wandered” over
it. 242 As my students never fail to point out, this description inaccurately
portrays all Native Americans as “hunter gatherers,” whereas many Native
American tribes had highly complex agricultural systems. 243
Commentators have also seized on this misstatement and have labeled it as
a “legal fiction.” 244 This characterization leads to the obvious argument
that the doctrine of discovery is inherently flawed because it rests on a legal
fiction. 245
 
excuse, if not justification, in the character and habits of the people whose rights have been
wrested from them.”).
240. Id. at 590.
241. See, e.g., Camden and Fort, supra note 32, at 89. Camden and Fort observe:
There is a serious question as to whether Marshall intended to write a legal fiction or
took his holding at face value. It is difficult to determine whether he was
‘bamboozled’ by the myth of the ‘vanishing Indian hunter’ and used it to justify the
more clearly mythical narrative of conquest or if he understood both the reasoning
and the holding as a legal fiction.
Id.
242. Johnson, 21 U.S. at 569–70 (stating “North American Indians could have acquired no
proprietary interest in the vast tracts of territory which they wandered over; and their right to the
lands on which they hunted, could not be considered as superior to that which is acquired to the
sea by fishing in it.”).
243. See Fletcher, supra note 213 at 675. Fletcher points to popular accounts of the
agricultural achievements of Native Americans that were contemporaneous with the Johnson
decision. Id. Fletcher concludes: “The entire Marshall Court, it appears, was bamboozled by one
of the greatest lies ever perpetrated about Indian people - that Indians were hunters and were not
(and could not) be farmers.” Id.; see also STUART BANNER, HOW THE INDIANS LOST THEIR
LAND 152 (2005) (providing illustrations of contemporary accounts of Native American
agriculture).
244. See, e.g., Camden and Fort, supra note 32, at 89–90 (discussing arguments on both sides
of the debate).
245. This type of argument is very similar to that leveled against the complex statutory
schemes discussed in the next section. See infra notes 268–302 and accompanying text.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 105

Jen Camden and Kathryn Fort have produced a thoughtful

examination of Johnson from the perspectives of both law and literature, 246
and they suggest that Justice Marshall’s characterizations echo the “myth
of the Vanishing [Native] American.” 247 Camden and Fort also discuss
whether Justice Marshall knew that his descriptions of Native American
land use patterns were inaccurate. They further note that:
[T]here is a serious question as to whether Marshall intended to write a
legal fiction or took his holding at face value. It is difficult to
determine whether he was ‘bamboozled’ by the myth of the ‘vanishing
Indian hunter’ and used it to justify the more clearly mythical narrative
of conquest or if he understood both the reasoning and the holding as a
legal fiction. 248
Although they equivocate as to whether Justice Marshall’s views
were sincere, Camden and Fort repeatedly refer to the doctrine of discovery
as a legal fiction. 249 Other scholars who have asked the same question have
concluded that the apologetic dicta with which Justice Marshall peppered
his opinion confirms that he was knowingly deploying a legal fiction. 250 In
particular, these scholars point to Justice Marshall’s use of the term
“extravagant” 251 to describe the concept that the “discovery of an inhabited

 
246. Camden and Fort, supra note 32, at 95. One of the primary concerns raised by Camden
and Fort is the effect of time on legal fictions. See id. Camden and Fort ask: “Has the legal
fiction of conquest become historical fact in the minds of lawyers whose first-year property law
course provides their only exposure to Johnson v. M’Intosh?” Id.
247. Id. at 102–04 (discussing literary trope of “vanishing Indian”).
248. See id. at 90–91. Recognizing the definitional issue regarding what qualifies as a legal
fiction, Camden and Fort explain, “[t]his is an interesting question because the term ‘legal fiction’
has clear requirements, not the least of which is that the judge using the fiction understands it as
such.” Id. at 89.
249. Id. at 92. Camden and Fort conclude that discovery qualifies as what Fuller called either
a persuasive or apologetic fiction. Id. (“Marshall’s dicta and reasoning, at the time, also fits
Fuller’s definitions of emotive or persuasive and apologetic legal fictions.”).
250. Id. at 91. According to Camden and Fort, “[t]his ‘extravagant’ claim against ‘natural
law’ seems to demonstrate at least an ambiguous stance on the part of Marshall.” Id. They
nonetheless equivocate by concluding “whether it was understood to be a ‘fiction’ by other judges
and lawyers at the time is questionable.” Id. at 90; see also William D. Wallace, M’Intosh to
Mabo: Sovereignty, Challenges to Sovereignty and Reassertion of Sovereign Interests, 5
CHI.-KENT J. INT’L & COMP. L. REV. article 5, at 4 (2005), available at
http://www.kentlaw.edu/jicl/articles/spring2005/s2005williamwallace.pdf (last visited Sept. 2,
2009) (observing that the language used in the Johnson opinion illustrates that “Chief Justice
Marshall recognized the legal fiction involved in his decision but nevertheless acknowledged the
political and legal necessity to establish such a theory”).
251. Johnson v. M’Intosh, 21 U.S. 543, 591 (1823) (admitting “extravagant . . . pretension” of
European land claims); see also Camden and Fort, supra note 32, at 91 (referring to use of the
term “extravagant”); Wallace, supra note 250, at 4 (referring to the use of “extravagant”).
   

106 ST. THOMAS LAW REVIEW [Vol. 23

country” was equivalent to “conquest.” 252 Still other commentators have

concluded that Justice Marshall was merely repeating the conventional
racist wisdom of the time, and he genuinely believed “one of the greatest
lies ever perpetrated about the Indian people.” 253
At the end of the day, it is not clear what is gained by determining
whether Justice Marshall actively believed his statements about Native
American land use patterns. If Justice Marshall believed his claim that
Native Americans were not agriculturists, then his decision includes a
factual misstatement. This is an empirical legal error. As we saw in the
last section, when a legal rule is based on an inaccurate factual supposition,
the rule should be changed or modified provided the rule is valued for its
veracity. 254 An empirical error does not qualify as a legal fiction under
Fuller’s definition because it lacks the required transparent falsity of a legal
fiction. 255
In the alternative, even if Justice Marshall understood that the land
use patterns he described were not in fact true, it still does not qualify as a
legal fiction. 256 The hallmark of a legal fiction, according to Fuller, is that
it is not intended to deceive. 257 An intentional misstatement designed to
justify a racially oppressive legal system seems to be calculated to both
deceive and subordinate. It differs markedly from the fictional ejectment
that was fabricated in order to bring the Johnson case before the court. 258
Just like the fertile octogenarian, 259 everyone involved in the Johnson
case knew that the ejectment did not in fact occur and no one beyond the
case was expected to believe that it had. 260 The same cannot be said of
intentional lies told about minority groups in order to justify repressive
laws. 261 As Camden and Fort observed, such “legal fictions” can easily
 
252. Camden and Fort, supra note 32, at 91.
253. Fletcher, supra note 213, at 675 (“The entire Marshall Court, it appears, was bamboozled
by one of the greatest lies ever perpetrated about Indian people—that Indians were hunters and
were not (and could not) be farmers.”). Banner also agrees that Marshall “mistook the fiction for
the reality.” BANNER, supra note 243, at 184 (referring to colonial land acquisition).
254. See supra Part III.A.
255. See FULLER, supra note 1, at 9 (providing classic definition of legal fictions).
256. See Camden and Fort, supra note 32, at 102–04.
257. See FULLER, supra note 1, at 6 (“For a fiction is distinguished from a lie by the fact that
it is not intended to deceive.”).
258. ROBERTSON, supra note 217, at 54 (describing how pleadings were based on procedural
legal fictions).
259. See supra notes 173–87 and accompanying text.
260. ROBERTSON, supra note 217, at 54.
261. Cf. Sofier, supra note 29, at 892 (“Pragmatic fictions eliminate the past and shroud the
tragedy of present reality.”).
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 107

“become ‘truth’ to the majority . . . and trickery to the minority group.” 262
Regardless of whether Justice Marshall knew that the land use
patterns he described were false, it is not plainly apparent that Justice
Marshall based his holding on the distinction between cultivators and
hunters. Although Justice Marshall mentions this distinction as a possible
justification for the doctrine of discovery, he clearly states that the Court
“will not enter into the controversy” over such “abstract principles” and
their effect on ownership rights. 263 Indeed, it is in the next sentence that
Justice Marshall declares: “[c]onquest gives a title which the Courts of the
conqueror cannot deny.” 264
It is here, in the constitutive power of the law, that Justice Marshall
rests his decision. The doctrine of discovery exists because of the actions
of the sovereign⎯not because of real or imagined land use patterns.
Justice Marshall’s infamous pronouncement illustrates a point that is often
raised by commentators regarding the inherent difference between legal
fictions and literary fictions. 265 Although theories of narrative and
interpretation can enhance our understanding of the law and judicial
opinions, it is imperative not to lose sight of what makes the law unique
“because the production and reception of texts within the law takes place
within a context of the systemic application of state-sanctioned force.” 266

 
262. Camden and Fort, supra note 32, at 86 (asserting existence of such legal fictions
“delegitimizes the law in the eyes of outsiders”).
263. Johnson v. M’Intosh, 21 U.S. 543, 588 (1823) (expressing a question as to “whether
agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters
from the territory they possess, or to contract their limits”).
264. Id.
265. See Soifer, supra note 29, at 882–83 (discussing the differences between legal fictions
and literary fictions). Soifer explains:
Legal fictions are quite different from real, literary fictions. For one thing, as Bob
Cover pointed out, potential violence lurks beneath the fictions created by judges,
while the nexus between even the most powerful literary fiction and actual force is
quite attenuated. Additionally, the author of real fiction enjoys more freedom than the
creator of legal fiction.
Id.; see also Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986) (“Legal
interpretation takes place in a field of pain and death.”); Robin L. West, Adjudication Is Not
Interpretation: Some Reservations About the Law-as-Literature Movement, 54 TENN. L. REV.
203, 207 (1986) (noting that adjudication is not an interpretive act rather it “is an imperative act”).
266. KIERAN DOLIN, FICTION AND THE LAW: LEGAL DISCOURSE IN VICTORIAN AND
MODERNIST LITERATURE 10 (1999). The full quote provides:
In the midst of this interdisciplinary endeavour, one irreducible difference between
law and literature has often been reasserted: that legal interpretation cannot be
assimilated to literary interpretation, because the production and reception of texts
within the law takes place within a context of the systemic application of state
sanctioned force.
   

108 ST. THOMAS LAW REVIEW [Vol. 23

C. STATUTORY SCHEMES

We now move our discussion to complex statutory schemes that, like

the discredited regimes discussed in the immediately prior section, are
neither transparently false nor demonstrably false. As noted in Part II,
statutory legal fictions exist across a broad range of complex regulatory
systems, including the tax code, food and drug law, environmental
protection law, inheritance law, anti-discrimination laws, and securities
regulation. 267 The tax system represents one of the most familiar and
comprehensive of these regulatory regimes. 268
As anyone who has labored through the intricacies of the Child and
Dependent Care Tax Credit, 269 or the three percent phase-out of itemized
deductions for high-income taxpayers can attest, 270 the tax law is confusing,
complicated, and frustratingly self-referential. Students who enroll in my
introductory tax course initially approach the topic with a degree of fear
and loathing that seems unrivaled among the recommended large lectures
classes in the upper level curriculum. 271
Although the United States can boast one of the highest levels of
voluntary tax compliance in the world, there remains an annual “tax gap”
of approximately $345 billion in unpaid taxes. 272 This gap is partly
attributable to the complexity of the tax system and the general alienation

 
Id.; see also Cover, Violence and the Word, supra note 265, at 1629 (“Between the idea and the
reality of common meaning falls the shadow of the violence of law, itself.”).
267. See discussion supra Part II.B.
268. Carolyn C. Jones, Taxes and Peace: A Case Study of Taxing Women, 6 S. CAL. REV. L.
& WOMEN’S STUD. 361, 364 (1997) (“Taxation is an encounter between the state and citizen that
is ordinary and regular.”).
269. I.R.C. § 21 (West 2007). Taxpayers are first directed to a twenty-three page publication
to explain the credit and determine if they are eligible. Child and Dependent Care Expenses,
I.R.S. Publication 503, (Dec. 10, 2009), available at http://www.irs.gov/pub/irs-pdf/p503.pdf (last
visited Sept. 2, 2009).
270. I.R.C. § 68(a)(1) (West 2001). The three-percent phase out is subject to its own phase
out, such that the three percent phase out became a two percent phase out in 2007 and went down
to one percent in 2008 and 2009. I.R.C. § 68(f)(1)–(2) (West 2001). The phase out is repealed as
of December 31, 2009. I.R.C. § 68(g) (West 2001).
271. For a general discussion of the teaching challenges facing tax professors see Ajay K.
Mehrotra, Teaching Tax Stories, 55 J. LEGAL EDUC. 116 (2005). According to Professor
Mehrotra, “[l]aw professors who teach tax have long recognized the challenges of their subject
matter.” Id. at 116.
272. See Dave Rifkin, A Primer on the “Tax Gap” and Methodologies for Reducing It, 27
QUINNIPIAC L. REV. 375, 377 (2009) (reporting estimated tax gap of $345 billion for 2001, the
most recent year available).
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 109

many taxpayers feel when confronted with this regulatory behemoth. 273
Persistent calls for simplification highlight the fact that the tax code is a
creation of the legislature, a regime spun out of whole cloth as a fair and
equitable method to apportion the burdens of citizenship. 274
In the face of such complexity, taxpayers are quick to catalogue the
indignities imposed by the tax code, and it is appealing to dismiss the entire
project as a mere fiction. We saw a similar impulse in the earlier section
with respect to the discredited regimes of slavery and the doctrine of
discovery. 275 John Prebble has written widely on the subject of tax fictions
and takes the position that the “dislocation” or “ectopia” 276 intrinsic to tax
law is a result of the flawed fictions on which the tax code is based. 277
Building on the work of Fuller, Prebble argues that tax is entirely “different
from other law” because it rests on a tax base that the law cannot describe
accurately and has no counterpart in reality. 278 Prebble uses this
observation to draw a number of conclusions regarding the complexity of
tax law, its general incoherence, and the necessity for open-ended anti-
avoidance rules. 279

 
273. A major cause of the “tax gap” is the perceived unfairness of the tax code. JOINT
COMMITTEE ON TAXATION, OPTIONS TO IMPROVE TAX COMPLIANCE AND REFORM TAX
EXPENDITURES, JCS REP. NO. 02-05, at 1 (Jan. 27, 2005), available at www.house.gov/jct/s-2-
05.pdfwww.house.gov/jct/s-2-05.pdf (last visited Aug. 22, 2009) (noting efforts to address non-
compliance include “simplifying the [tax] or making it more fair”). The tax gap is caused in part
by the complexity and confusion of the tax code. Rifkin, supra note 272, at 418–19.
274. See Edward J. McCaffery, The Holy Grail of Tax Simplification, 1990 WIS. L. REV.
1267, 1267 (1990) (discussing movement for simplification of tax code).
275. See discussion supra Part II.B.
276. Prebble, Built on Sand, supra note 33, at 306.
277. Prebble, Fictions, supra note 33, at 23–24 (“[I]ncome tax law is constitutionally
incapable of attaining the desideratum of fictionless transparency.”). Professor Prebble notes that
the fictions of tax law diverge from the fictions of the common law because the latter achieved an
end that could have been accomplished directly. See id. at 11 (“The fictions of income tax law
are very different. The classic legal fiction entails pretence, but taxation fictions entail
duplicity.”). Id. Calling both classic and tax fictions “pure legal fictions,” Prebble distinguishes
them from series of “quasi-fictions” which he refers to as “apologetic, deeming, and expository.”
Id. at 19. As opposed to classic legal fictions, which rest on a false statement, “quasi-fictions
contain within themselves their own explanations, so they only appear to be false until one
examines them closely.” Id. Prebble further divides the fictions used in tax law into two distinct
camps: inherent fictions as to questions of fact and analeptic fictions as to questions of law. Id. at
16–17.
278. Id. at 18. Prebble concludes that “society has chosen a tax base that is inherently flawed
by fictions, a base that the law cannot describe accurately.” Id. at 24
279. See Prebble, Built on Sand, supra note 33, at 318 (“[T]he ectopia of income tax law
offers an explanation for a number of the more puzzling aspects of this branch of the law,
including its complexity and its incoherence.”).
   

110 ST. THOMAS LAW REVIEW [Vol. 23

To be sure, the tax code employs numerous individual fictions, such

as the dual transfer of foregone interest under section 7872 that was
discussed in Part II. 280 Many of these tax fictions are imposed in order to
untangle tax-motivated transactions that are not without their own hint of
fantasy. Although tax scholars have from time to time quibbled with these
individual fictions, 281 Prebble’s objection to the flaws inherent in tax
fictions extends to the entire tax system. 282 Central to our discussion,
Prebble contends that tax fictions are “truly false” 283 because they cannot
accurately capture economic reality. Thus, the appropriate measure for the
truth or falsity of a tax system, according to Prebble, is the extent to which
the system serves as a replica of economic activity. 284
Although I have serious reservations as to whether economic reality is
a suitable benchmark, my larger concern relates to whether the tax system
or the choice of a tax base is demonstrably false in any meaningful way.
As with the discussion of discredited regimes, 285 the notion that a
legislatively imposed tax base is “false” denies the constitutive power of
law. 286 It also involves an unspoken appeal to a set of “facts” dubbed
“economic reality,” 287 just as the falsity of the discredited regimes required
an unspoken appeal to principles of natural law. 288 As the law defines the
tax base, it also serves to reify the concept it names. In this way, society
would not be said to choose a tax base. Society constitutes a tax base

 
280. Lynch, supra note 118, at 35 and accompanying text.
281. See, e.g., H. David Rosenbloom, Banes of an Income Tax: Legal Fictions, Elections,
Hypothetical Determinations, Related Party Debt, 26 SYDNEY L. REV. 17, 22 (2004) (“Elections,
like legal fictions, are probably inevitable in an income tax system.”).
282. Prebble, Fictions, supra note 33, at 6.
283. Id. at 19. Prebble argues that tax fictions are not simply the “scaffolding,” but “entail
duplicity” because they are integral to the tax system itself. Id. at 11, 15. Quoting Fuller, Prebble
notes that “[w]e cannot drop [the tax fiction] from the ‘reckoning’ once it has fulfilled its function
because it is the means of fulfillment.” Id. at 16.
284. Prebble states that “inherent in any income tax is a concept of income that cannot avoid
being flawed [because] unlike most law, tax law cannot avoid being separated from its factual
subject.” Prebble, Built on Sand, supra note 33, at 318. Although Prebble quotes Vaihinger’s
views on reality, such quotations seem to raise questions about Prebble’s reliance on economic
reality as an accurate (or even discernable) measure of truth or falsity. For example, Prebble
quotes the following observation by Vaihinger: “the greatest and most important human errors
originate through thought-processes being taken for copies of reality itself.” Prebble, Fictions,
supra note 33, at 16.
285. See discussion supra Part II. B.
286. VAIHINGER, supra note 5, at 147. As Vaihinger noted “jurisprudence is not really a
science of objective reality but a science of arbitrary human regulations.” Id.
287. See Prebble Fictions, supra note 33, at 14, 16.
288. See supra notes 89–93 and accompanying text.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 111

through the process of legislation, regulation, compliance, judicial

interpretation, and enforcement. Our tax code may be an artificial creation
of law, but it is no less “real” than the economic transactions it imperfectly
measures. 289
At the outset, it bears noting that many of my tax students would
doubtless applaud Prebble’s assertion that the “income tax law may be law
as tax specialists know law, but it is not law as other people know it.” 290
Each Fall, I face 100 second and third year law students who show up for
the first day of tax class with a preconceived view that tax law is equal
parts penalty, sport, and torture. As a penalty to be avoided at all costs,
students are eager to find the promised “loopholes” and often play fast and
loose with the facts in a way that I do not encounter in my other courses. 291
My first challenge is to convince them that representing a client in a tax
controversy is no different from any other professional undertaking. Or is
it?
Perhaps the disregard my tax students show towards the facts of a
transaction is a product of what Prebble calls the “simulacrum” effect of
tax law? 292 Why should I expect my students to respect the facts of a case
when the tax code rests on such obvious and uneasy fictions? 293

 
289. Prebble asserts, “unlike . . . other forms of law, the separation between tax law and its
subject matter is real, inherent, and unavoidable.” Prebble, Built on Sand, supra note 33, at 308.
With respect to business profits, Prebble argues:
In its most general sense, the policy of income tax law in respect of businesses must
be to tax real business profits. Profits from economic activity exist in the natural
world, but profits defined by law are a construction of human thought. Economic
profits constitute the only reality that a government can tax.
Id. at 310. Again, Vaihinger’s work would seem to question Prebble’s strong reliance on
“reality.” See VAIHINGER, supra note 5, at 15 (“[T]he object of the world of ideas as a whole is
not the portrayal of reality – this would be utterly impossible – but rather to provide us with an
instrument for feeling our way around more easily in this world.”) (emphasis in original). Id.
290. Prebble, Built on Sand, supra note 33, at 311. Professor Prebble notes:
Other people reasonably expect law to have a close and almost symbiotic relationship
with its subject matter. Tax specialists know that income tax law’s relationship with
its subject matter can be so haphazard that at times it appears to be almost a matter of
random serendipity when fact, law, and tax consequence coincide.
Id.
291. For a general discussion of taxpayer ethics see Michael Wenzel, The Multiplicity of
Taxpayer Identities and Their Implications for Tax Ethics, 29 LAW & POL’Y 31 (2007)
(discussing role of identity in determining “tax ethics” of taxpayers).
292. Prebble, Built on Sand, supra note 33, at 305 (“[T]ax law’s concept of income is not
income itself but a simulacrum of income.”); see also Prebble, Fictions, supra note 33, at 3 (“Tax
law’s concept of income is not the fact of income itself but a legal simulacrum of income.”).
293. See Prebble, Fictions, supra note 33. Arguably, the widespread disdain and disregard for
tax compliance is the inevitable result of the ectopia Professor Prebble has so carefully described.
   

112 ST. THOMAS LAW REVIEW [Vol. 23

Ultimately, I believe that Prebble’s ectopia thesis may yield helpful insights
with respect to tax and other highly regulated fields where the artificiality
of regulation looms large in the minds of the regulated. However, I suspect
that the dislocation so persuasively described by Prebble is due to
something other than inherently flawed tax fictions.
The unspoken assumption that economic reality is the appropriate
measure for the truth or veracity of the taxing statute potentially opens all
regulatory schemes to a charge of falseness because regulation, by its
nature, does not simply replicate economic activity. Although taxation is a
product of transactions and what takes place in markets, the taxation of
those markets is necessarily something more than, or other than, the object
of the tax itself. The tax base represents a political compromise that
incorporates a host of social and economic policy considerations. Many
factors of economic and social policy go into the ultimate determination of
how best to measure “ability to pay.” 294 For this reason, the tax base is
necessarily much more complex that a simple replica of economic activity.
A multitude of deductions and credits are designed to further a wide range
of social and economic policies, such as the charitable deduction, 295 the
Earned Income Tax Credit, 296 and special expensing rules applicable to
small businesses. 297 The fact that the tax code is not intended to reflect
economic reality might make it artificial, but it does not make it false. 298

 
294. Edward J. McCaffery, A New Understanding of Tax, 103 MICH. L. REV. 807, 872 (2005)
(discussing “ability to pay” as a “norm of an ideal income tax”).
295. I.R.C. § 170 (2008). The charitable contribution deduction encourages contributions to a
carefully defined universe of organizations. I.R.C. § 170(c) (2008).
296. I.R.C. § 32 (2009). The Earned Income Tax Credit functions as a transfer payment to the
working poor. See, e.g., Center on Budget and Policy Priorities, Policy Basics: The Earned
Income Tax Credit (2009), available at http://www.cbpp.org/files/policybasics-eitc.pdf (last
visited Jun. 10, 2010) (The Center on Budget and Policy Priorities is a non-partisan research
organization analyzing programs affecting low- and moderate-income families and individuals at
the federal and state levels).
297. I.R.C. § 179 (2010). The provision allowing immediate expensing is designed as a
targeted way to promote investment in new machinery and other capital goods. See RAQUEL
MEYER ALEXANDER, Expensing, in NTA ENCYCLOPEDIA OF TAXATION AND TAX POLICY, (2d
ed. 2005), available at
http://www.taxpolicycenter.org/taxtopics/encyclopedia/Expensing.cfm, I.R.C. § 179.
298. See Prebble, Fictions, supra note 33, at 21 (explaining that fictions of tax law are
essential to tax law and are different from other fictions). Although it is appealing to conflate the
artificiality of a statutory scheme with falsity, it is important to remember the distinction between
fiction and legal fictions. If an author makes up a story about a parallel universe where concepts
are identified by three-digit numbers and familiar things are called by different names, that author
has engaged in a bona fide bout of fiction writing. Something very different happens, however,
when the author of this alternate reality is the legislature.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 113

The business world has largely adjusted to the notion that tax is a
necessary transaction cost, although taxpayers routinely chase tax-
motivated investment vehicles, pejoratively known as “tax shelters.” 299
Indeed, a good measure of ectopia arguably occurs when the tax code
struggles to look past the formal law of the transaction and capture its
economic impact. Section 7872, discussed in Part II, provides an example
of tax legislation that was designed to unravel tax-motivated
transactions. 300 Congress enacted section 7872 after years of unsuccessful
litigation on the part of the Internal Revenue Service, which had urged
courts to recognized the value of “foregone interest” 301 in a variety of
transactions that included employee/shareholder below-market loans 302 and
intra-family no interest loans. 303
In the first instance, the foregone interest provided additional tax-free
income or distributions to the employee/shareholder and, in the latter case,
the loan format avoided an otherwise substantial gift tax. 304 Without a
statutory mandate, courts had refused to impute the amount of foregone
interest to the borrower, much less impute it a second time to the lender. 305
Congress enacted Section 7872 because the legal structure of the
underlying transaction did not reflect its intended economic impact. 306 In
the case of below-market rate loans, the “displacement” or “dislocation” 307
 
299. See Karen C. Burke & Grayson M.P. McCouch, COBRA Strikes Back: Anatomy of a Tax
Shelter, 62 TAX LAW. 59, 59, 64–65 (2008) (discussing “contingent-liability tax shelters”).
300. See discussion supra Part II.B.; see also I.R.C. § 7872 (West 2006); George Cooper, The
Taming of the Shrewd: Identifying and Controlling Income Tax Avoidance, 85 COLUM. L. REV.
657, 659–660 (1985) (identifying section 7872 as a means to stop tax avoidance measures).
301. See Phillip J. Closius & Douglas K. Chapman, Below Market Loans: From Abuse to
Misuse—A Sports Illustration, 37 CASE W. RES. L. REV. 484, 496-98 (1987) (describing section
7872 as a legislative response to judicial inaction and defining the foregone interest).
302. See, e.g., Hardee v. United States, 82-2 USTC P9459 (Ct. Cl. 1982), rev’d, 708 F.2d 661,
662 (Fed. Cir.1983) (holding that majority shareholder and president who received an interest-
free loan from a closely-held corporation did not realize taxable income from the loan).
303. See, e.g., Johnson v. United States, 254 F. Supp. 73, 73, 77 (N.D. Tex. 1966) (intrafamily
demand loan); Crown v. Comm’r, 67 T.C. 1060, 1065 (1977), aff’d, 585 F.2d 234, 234–235 (7th
Cir. 1978) (intrafamily demand loan).
304. See Hardee, 708 F.2d at 662; Crown, 585 F.2d at 234–235. The provisions controlling
gift tax can be found at I.R.C. § 2501 et seq. (West 2004) (gift tax provisions).
305. In 1984, the U.S. Supreme Court held that an interest-free loan can result in a taxable gift
to the extent of the foregone interest, thereby imputing interest to the borrower, but not to the
lender. See Dickman v. Comm’r, 465 U.S. 330 (1984).
306. See, e.g., Adam Chodorow, Economic Substance and the Laws of Interest: A Comparison
of Jewish and U.S. Federal Tax Law, HANDBOOK OF JEWISH LAW AND ECONOMICS 13 (Aug. 6,
2009) (unpublished paper, on file with Oxford University Press), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1440294.
307. See Prebble, Built on Sand, supra note 33, at 305–06 (“‘Ectopia’ means ‘displacement’
   

114 ST. THOMAS LAW REVIEW [Vol. 23

between the tax law and the law of the transaction exists because the
transaction was structured in an artificial way as to defeat the taxing
authorities. 308 As a result, tax law cannot rely on the law of the transaction
because the structure of the transaction is a tax-motivated fiction. 309 Thus,
Prebble’s observation that “[e]conomic reality for tax law is not necessarily
the same as legal reality for leasing law” 310 should not be surprising.
Indeed, I would suggest that the any given transaction involves more than
just these two layers of complexity identified by Prebble (i.e., tax law and
the law of the underlying transaction). 311 It involves the law of the
transaction, the economic impact of the transaction, the tax consequences,
and accounting conventions. 312
Even if economic reality were the appropriate measure, it is not clear
by what standard Prebble’s tax fictions are demonstrably false. In asserting
that tax fictions are “truly false,” 313 he notes that “[p]rofits from economic
activity exist in the natural world, but profits defined by law are a
construction of human thought.” 314 This approach to verity differs from the
definition of an empirical legal error employed by Smith⎯a statement that
rests on an empirically false premise, such as the already discussed rules
governing eye witness testimony. 315 For example, Prebble identifies the
generally held twelve-month convention for measuring income as a

 
or ‘dislocation’”).
308. See Chodorow, supra note 306, at 13; see also David P. Hariton, The Frame Game: How
Defining the “Transaction” Decides the Case, 63 TAX LAW. 1, 1 (2009), available at
http://www.abanet.org/tax/pubs/ttl/631fa09/1-Hariton.html.
309. See, e.g., James M. Delaney, Where Ethics Merge With Substantive Law—An Analysis of
Tax Motivated Transactions, 38 IND. L. REV. 295, 295–96, 300–01 (2005) (discussing “shams,”
or legal fictions, created by taxpayers where actions align with the letter of the law but do not
meet what the IRS considers to be the “spirit of the law”).
310. Prebble, Fictions, supra note 33, at 17. As Prebble explains:
Economic reality for tax law is not necessarily the same as legal reality for leasing
law. It is a characteristic of tax law that this kind of problem is always potentially
present. That is, there are always two different laws potentially applicable to any one
transaction, namely the law of the transaction itself and tax law.
Id.
311. See id.
312. This observation includes accounting conventions to the extent they also do not reflect
economic reality. See generally BETHANY MCLEAN & PETER ELKIND, THE SMARTEST GUYS IN
THE ROOM: THE AMAZING RISE AND SCANDALOUS FALL OF ENRON (2003).
313. Prebble, Fictions, supra note 33, at 19.
314. Prebble, Built on Sand, supra note 33, at 310.
315. See Smith, supra note 22, at 1452–55. Similarly, empirical studies indicate that
individuals who are being questioned by the police do not in fact believe that they “are free to go”
and, therefore, they should be entitled to a Miranda warning. Id. at 1458–59.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 115

fiction. 316 I would argue that the choice of twelve months as the relevant
period during which to measure income is neither objectively true nor false.
It reflects a legislative decision to measure income in twelve-month
snapshots. This convention may be artificial, but does the fact that it is
legislatively imposed, or in Prebble’s words “a construction of human
thought,” make the convention “truly false”? 317
There are certainly tax fictions that would qualify as classic legal
fictions under Fuller’s reckoning, 318 and there are some tax fictions that
would qualify as empirical legal errors according to Smith’s model. 319 For
example, the deeming fiction of section 7872 seems to qualify as a classic
legal fiction and would be easily recognizable as such by Fuller. 320 It is
uncontroverted that no interest actually changed hands, despite the dual
deemed transfer. 321 Accordingly, the imposed transfers are patently false.
Section 7872 has utility notwithstanding its false transfers because it allows
the tax code to reach transactions that have been structured to avoid income
and gift taxation. 322
In addition, tax rules could be classified as empirical legal errors
under Smith’s definition, if they were based on a factual error subject to
empirical proof. 323 The determination of whether a tax law qualifies as an
empirical legal error, therefore, depends on the justification underlying the
adoption of the law. Take for example the choice of the appropriate unit of
taxation. 324 For many purposes, U.S. tax law treats a husband and wife as a
single unit of taxation. 325 If the legislative choice of the marital unit was
 
316. See Prebble, Built on Sand, supra note 33, at 307.
317. See Prebble, Fictions, supra note 33, at 13, 19.
318. See FULLER, supra note 1, at 9 (providing classic definition of legal fictions).
319. See Smith, supra note 22, at 1439–40 (discussing “new legal fictions” and the six most
important reasons why judges rely on these fictions).
320. See Lynch, supra note 118, at 35. It is acknowledged to be false in that no interest
actually changes hands. Id. In addition, the legal fiction of section 7872 has utility because it
reaches the economic substance of a tax-motivated transaction. See Brien D. Ward, The Taxation
of Interest Free Loans, 61 TUL. L. REV. 849, 850–51 (1987) (describing section 7872 as creating
artificial transfers between lenders and borrowers “to ensure that income [is] recognized by each
party.”).
321. See Ward, supra note 320, at 850–51.
322. See Cooper, supra note 300, at 725.
323. See Smith, supra note 22, at 1441.
324. The federal individual income tax is imposed at different rates depending on an
individual’s filing status. See I.R.C. § 1(a)–(d) (West 2008). There are additional issues with
respect to the appropriate unit of taxation in the context of entity taxation. See I.R.C. § 11 (West
1993).
325. See I.R.C. § 1(a) (West 2008) (rates for married individuals filing jointly and surviving
spouses).
   

116 ST. THOMAS LAW REVIEW [Vol. 23

based on the factual supposition that husbands and wives engage in

extensive income-pooling, 326 then the policy choice regarding spousal unity
is subject to a test of empirical proof. 327 If, however, the choice of the
marital unit was the result of a policy decision to privilege and benefit
(opposite-sex) married couples, then it is difficult to theorize the truth or
falsity of that choice. 328
Critical tax theory has produced volumes of scholarly commentary on
the unit of taxation and the marital provisions. 329 It has criticized the
exclusion of same-sex couples on the basis of equity and uniformity. 330 It
has discussed the hidden disincentives to family formation that the joint
filing provisions produce when they intersect with the Earned Income Tax
Credit. 331 It has documented the “stacking effect” that penalizes two-wage
earner families. 332 It has marshaled empirical research regarding the extent
to which income pooling is practiced by opposite-sex couples. 333 It has not
to my knowledge, however, asserted that the joint filing provisions are

 
326. For a discussion and a critique of the income pooling rationale see Marjorie E.
Kornhauser, Love, Money, and the IRS: Family, Income-Sharing, and the Joint Income Tax
Return, 45 HASTINGS L.J. 63, 73–79 (1993).
327. See id. For example, based on empirical research, Kornhauser concludes: “even among
couples who nominally pool assets . . . true sharing frequently does not occur because power
arising from both cultural sources and earning power is distributed unequally.” Id. at 88.
328. See generally Nancy J. Knauer, Heteronormativity and Federal Tax Policy, 101 W. VA.
L. REV. 129, 144–47 (1998).
329. Critical tax scholarship emerged as a distinct field of scholarship in the United States in
the late 1990s. See CAMBRIDGE UNIV. PRESS, CRITICAL TAX THEORY: AN INTRODUCTION xxi
(Anthony C. Infanti and Bridget J. Crawford, eds.) (2009). Critical tax scholarship encompasses a
relatively diverse range of perspectives, including critical race theory, feminist legal theory, and
queer theory. See, e.g., Anne L. Alstott, Tax Policy and Feminism: Competing Goals and
Institutional Choices, 96 COLUM. L. REV. 2001, 2002 (1996) (feminism); Beverly I. Moran &
William Whitford, A Black Critique of the Internal Revenue Code, 1996 WIS. L. Rev. 751, 751
(critical race theory); Knauer, supra note 328, at 130 (queer theory). Although it is difficult to
categorize the divergent voices of the critical tax scholars, they all share a common understanding
that “legal doctrine and legal institutions are contingent products in an evolutionary process of
social change.” RICHARD W. BAUMAN, CRITICAL LEGAL STUDIES: A GUIDE TO THE
LITERATURE 3 (Westview Press 1996). In this way, the critical tax scholars can trace their roots
directly to the larger and earlier field of critical legal studies which rejects law’s neutrality and the
existence of determinative rules that produce objective and predictable adjudications. Id. at 4.
330. See Knauer, supra note 328, at 217.
331. See, e.g., Dorothy A. Brown, The Marriage Bonus/Penalty in Black and White, 65 U.
CIN. L. REV. 787, 789 (1997).
332. See, e.g., Edward J. McCaffery, Taxation and the Family: A Fresh Look at Behavorial
Gender Biases in the Code, 40 UCLA L. REV. 983, 991 (1993).
333. See Marjorie E. Kornhauser, A Taxing Woman: The Relationship of Feminist Scholarship
to Tax, 6 S. CAL. REV. L. & WOMEN’S STUD. 301, 303 (1997).
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 117

false. 334 One might disagree with the choice based on competing policy
considerations, but something is not false just because it is ill advised or
poorly drawn or discriminatory or even, as we saw in the last section,
immoral. 335 Indeed, for those who bear the weight and press of
discriminatory laws, such laws feel very real indeed. Discriminatory laws
and regulations limit life opportunities, constrain choices, reify inequality,
and legitimize violence. To dismiss such laws as false, devalues the pain
they cause.
The concept of capital gains provides another, and less emotionally
charged, example. 336 Prebble is primarily concerned with tax fictions
when they fail to reflect economic reality. 337 The determination of whether
an item of receipt is ordinary income or capital gain is exceedingly
important due to the favorable tax rates applicable to capital gains, 338 but
there is no comparable concept in accounting or economics. 339 The
distinction between capital gain and ordinary income is purely a creation of
the income tax law. 340
Is it appropriate to say that the distinction between ordinary income
and capital gain is a fiction simply because it does not have an analog in
economic reality or in accounting or the law governing sales? How can we
declare this distinction is false when numerous sections of the Internal
Revenue Code and Treasury Regulations delineate its terms and parameters

 
334. Critical scholars have re-examined seemingly neutral tax provisions such as the Earned
Income Tax Credit paid to the working poor. See, e.g., Dorothy A. Brown, Race and Class
Matters in Tax Policy, 107 COLUM. L. REV. 790, 790 (2007). They have also considered the
marital deduction Qualified Terminable Interest Provisions under the federal estate and gift tax.
See Wendy C. Gerzog, The Marital Deduction QTIP Provisions: Illogical and Degrading to
Women, 5 UCLA WOMEN’S L. J. 301, 301–02 (1996). Another wider set of provisions that also
came under scrutiny is those related to employer-provided pension plans. See Dorothy A. Brown,
Pensions and Risk Aversion: The Influence of Race, Ethnicity, and Class on Investor Behavior, 11
LEWIS & CLARK L. REV. 385, 385 (2007). They have also critiqued the so-called “Nanny Tax”.
See Taunya Lovell Banks, Toward a Global Critical Feminist Vision: Domestic Work and the
Nanny Tax Debate, 3 J. GENDER RACE & JUST. 1, 2–3 (1999). In each instance, the authors
looked at the tax provisions with fresh and, admittedly, critical eyes. Not one, however, declared
the underlying tax provision to be “truly false.”
335. See discussion supra Part II.
336. See I.R.C. § 1(h) (West 2008).
337. See Prebble, Fictions, supra note 33, at 14.
338. See I.R.C. § 1(h) (West 2008).
339. MICHAEL J. GRAETZ & DEBORAH H. SCHENK, FEDERAL INCOME TAXATION:
PRINCIPLES AND POLICIES supra note 87, at 549 (Foundation Press 1940) (6th ed. 2009)
(explaining that the “concept is an artificial creation of the tax law that has no firm theoretical
grounding in accounting or economics”).
340. Id.
   

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and millions of taxpayers struggle with it annually? 341 By way of

comparison to the empirical legal errors identified by Smith, the distinction
between capital gain and ordinary income does not rest on a factual
supposition regarding the nature of the underlying economic activity. 342
The distinction is imposed by the tax code in order to measure ability to
pay. 343 It is not designed to capture or reflect economic reality. 344 We can
argue with its parameters and call them illogical, overly complex, and
inefficient. However, this critique does not render the distinction false in
the conventional sense of the term. The distinction might be a fiction to the
extent that it is made up out of whole cloth by the Internal Revenue Code,
but the failure to adhere to the rules and correctly characterize an item of
receipt carries with it a host of penalties that could include, in certain
instances, criminal sanctions. 345 Although the distinction may be
artificially created, its consequences are quite real.
Attempting to limit law’s reach to only what it can observe and
describe in real time greatly underestimates the constitutive power of law.
When Prebble argues that tax law is “separated from its subject matter in a
way that other law is not,” 346 he implies that the subject matter of tax law
exists a priori and in some way precedes what we call the “law.” I would
argue that law can in fact create its very subject matter and in so doing
generate and regulate reality. The tax base is defined by the tax laws and
the tax laws define the tax base. Thus, when the tax law defines the tax
base, it also constitutes the base. The resulting construction is no less real
than the economic profits it intentionally mismeasures.
 
341. Prebble devotes considerable attention to discussing the tricky area of business profits
and the distinction between capital and revenue. See Prebble, Built on Sand, supra note 33, at
312. Specifically, Prebble states that “income tax law cannot abandon the fiction of a logical and
factual boundary between capital and revenue.” Id. at 311. Strictly speaking, the income tax
could impose a tax on gross receipts that would eliminate the need to differentiate between capital
and revenue and the resulting ectopia existing between economic profits and taxable income. Of
course, a tax on gross receipts would be wildly unpopular. It would also contradict the overriding
goal of taxation, namely to apportion fairly the burdens of citizenship and accurately measure
one’s ability to pay.
342. For example, in the course of interpreting legislative or regulatory authority, courts
consider “legislative history” based on the belief that there is a discernable “legislative intent”
that guided the enactment of the law. Smith supra note 22, at 1461−62. Smith notes that recent
research and many judicial opinions have cast serious doubt on the existence of any autonomous
body of collective intent. Id. at 1464−65.
343. See I.R.C. § 1(h) (West 2008).
344. Id.
345. See Michael Doran, Tax Penalties and Tax Compliance, 46 HARV. J. ON LEGIS. 111, 114
(2009) (exploring the link between sanctions and compliance).
346. Prebble, Fictions, supra note 33, at 21.
   

2010] LEGAL FICTIONS AND JURISTIC TRUTH 119

IV. CONCLUSION
Fuller referred to legal fictions as “the growing pains of legal
language.” 347 Using “as if” reasoning, legal fictions facilitate the
application of legal rules to new and novel circumstances through analogy,
arguments of equivalence, and what only can be described as leaps of
faith. 348 The leap of faith imbedded in a traditional legal fiction does not
require unwavering belief, but rather a suspension of belief because a legal
fiction is not meant to deceive. 349 Both its power and its utility comes from
the fact that a legal fiction is acknowledged to be false.
Empirical legal errors, discredited regimes, and complex statutory
schemes are not classic legal fictions. Wrongly valued for their veracity,
empirical legal errors are mistakes—not fictions. 350 The discredited legal
regimes of slavery and discovery were imposed with the intent to
subordinate millions, and they were not acknowledged to be false, despite
being morally wrong. 351 The complex statutory schemes are artificial legal
frameworks replete with legal fictions, but the schemes themselves are
neither demonstrably false nor commonly held to be false. 352
Although these “new legal fictions” fall short of Fuller’s classic
definition, the commentators who have examined these categories within
the larger context of legal fictions are correct to see a certain similarity, and
they are correct to raise concern. As Fuller explained, a fiction becomes
dangerous when it is believed. 353 The new legal fictions are not legal
fictions in the conventional sense. Instead, they occupy the space on the
margins surrounding any broader discussion of legal fictions. They are
examples of the inherent risk involved whenever we mix fiction with

 
347. Fuller, supra note 1, at 21–22 (“[F]ictions are, to a certain extent, simply the growing
pains of the language of the law.”).
348. Id. at viii (“At the time I began to study the literature of fictions, the subject was
surrounded by the romantic aura of Hans Vaihinger’s Philosophy of As If, with its mysterious title
promising obscurely some mind-expanding reorientation of human perspectives.”). Fuller
discussed what he described as the “romantic aura” surrounding the potential of “as if” thinking.
See id.; see also Vaihinger, supra note 5.
349. In this regard, a legal fiction is not a benign “white lie” because even a white lie is
deployed with the intent to deceive, albeit for a good purpose.
350. See supra notes 131–87 and accompanying text (discussing empirical legal errors).
351. See supra notes 188–266 and accompanying text (discussing discredited legal regimes).
352. See supra notes 268–346 and accompanying text (discussing complex statutory
schemes).
353. See Fuller, supra note 1, at 9. According to Fuller, “A fiction taken seriously, i.e.,
believed becomes dangerous and loses its utility.” Id. Once a fiction loses utility, Fuller states
that “[i]t ceases to be a fiction . . . .” Id.
   

120 ST. THOMAS LAW REVIEW [Vol. 23

justice⎯at some point the fiction can become a lie.