There was a time when judges routinely deployed legal fictions, which Lon Fuller famously defined as false statements not intended to deceive, in order to temper the disruptive effect of changes in legal doctrine. In an age of positive law, such classic legal fictions are significantly less common. But they have been replaced by new legal fictions.
In fashioning legal rules, judges rely with surprising frequency on false, debatable, or untested factual premises. At times, of course, such false premises simply reflect judicial ignorance. But there is an increasingly large body of empirical research available to judges, and more often than not judges' reliance on false premises is not the result of ignorance. Instead, judges often rely on false factual suppositions in the service of other goals.
In this article, Professor Smith discusses a broad range of examples of new legal fictions, false factual suppositions that serve as the grounds for judge-made legal rules. The examples, drawn from diverse areas of doctrine, suggest a set of reasons, albeit generally unexpressed, why judges rely on new legal fictions. Sometimes judges rely on new legal fictions to mask the fact that they are making a normative choice. Other times, judges rely on new legal fictions to operationalize legal theories that are not easily put into practice. Still other times, judges deploy new legal fictions to serve functional goals and to promote administrability in adjudication. Finally, new legal fictions often serve a legitimating function, and judges rely on them - even in the face of evidence that they are false - to avoid what they perceive as de-legitimating consequences.
Judges rarely acknowledge that their ostensible factual suppositions are in fact new legal fictions, and they rarely articulate the reasons for relying on them. Even assuming one concludes that judges' apparent rationales for relying on them are valid, therefore, there is a serious question whether those rationales outweigh the general interest in judicial candor. After all, a general requirement of judicial candor - which permits the academy and the public to debate, criticize, and defend judges' grounds for decision - is essential to constraining judicial power. To be sure, whether any particular reason for judicial reliance on a new legal fiction is justified turns in part on an empirical judgment about the extent to which the new legal fiction actually achieves the end that the judge deployed it to achieve. But even when we can satisfactorily answer such empirical questions, we are still faced with a normative judgment about the relative desirability of candor and the goal served by dispensing with candor. Professor Smith concludes that the ends served by reliance on new legal fictions usually are not sufficient to overcome the presumption in favor of judicial candor, but that in rare cases dispensing with judicial candor might be justified.
GW Paper Series
GWU Legal Studies Research Paper No. 283, GWU Law School Public Law Research Paper No. 283
95 GEO. L. J. 1435 (2007)