II. The Legal Fiction
A. Common Law Legal Fictions
B. Statutory Legal Fictions
III. New Legal Fictions?
A. Empirical Legal Errors
B. Discredited Legal Regimes
C. Statutory Schemes
The legal fiction is a curious artifice of legal reasoning. (1) In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. (2) In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. (3) Attractive nuisance re-imagines the child trespasser as an invitee. (4) A host of doctrines bearing the term "constructive" in their titles adopt an "as if" rationalization that deems something to have occurred despite the fact that it did not. (5) These doctrines include constructive notice, (6) constructive eviction, (7) constructive ouster, (8) and constructive discharge, (9) to name but a few.
The legal fiction has a venerable pedigree that can be traced to Roman law where the praetor would endorse a false procedural statement, known as a fictio, in order to extend a right of action beyond its intended scope. (10) Some of the boldest legal fictions were adopted centuries ago by the English courts to mitigate the relentless formalism of the ancient writs (11) and the harsh results dictated by the command of stare decisis et non quieta movere. (12) Given this long and storied history, it is tempting to dismiss the legal fiction as a "topic of antiquarian interest" (13) or a "blundering device of an unphilosophical age." (14) Indeed, some of the assumptions that underlie common law fictions, such as the rule of the fertile octogenarian, are quite literally antediluvian. (15)
It would be a mistake, however, to conflate the moribund common law fictions that punctuate the first-year Property course with the broader category of legal fictions. (16) Far from being a historical oddity, legal fictions are common features of not only our common law, but also our statutory and regulatory law. (17) These patently false statements and deeming principles empower lawyers and decision-makers to resolve novel legal questions through arguments of equivalence and creative analogical reasoning. (18)
In contemporary terms, our tax code provides an excellent example of statutorily imposed legal fictions. (19) Designed to untangle complicated financial relationships and transactions, tax fictions govern basic principles, such as the appropriate unit of taxation. (20) Tax fictions also mandate elaborate schemes, such as the deemed dual transfer of "foregone interest" in the case of a below-market rate loan. (21)
The apparent contradiction presented by the legal fiction has fascinated legal scholars, who have differed widely with respect to their views on the desirability of fictions. (22) William Blackstone offered tepid approval of fictions and acknowledged their potential usefulness, (23) whereas Jeremy Bentham raged against common law fictions, which he denounced as a usurpation of legislative prerogative. (24) Lon Fuller produced the definitive modern assessment of the legal fiction and carefully weighed both its promise and inherent risk. (25)
Written in the early 1930s, Fuller's three-part series gave us the now classic definition of a legal fiction as "either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility." (26) Fuller posited an inverse relationship between the danger presented by any given fiction, and the extent to which the fiction was openly acknowledged to be false. (27) According to Fuller, a fiction is only dangerous when it is believed. …