Abstract
Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller’s classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialized language usage. Drawing on work done in the intervening decades on related issues outside the law, this chapter develops this insight in new directions, seeking to understand in more detail one of Fuller’s principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the “legal fiction” label to signal those writers’ sense of the futility of further justification to a non-legal audience (even when they are using the term in a justification likely to be read only by a legal audience); and, contrary to the assumptions of many post-Fuller theorists, that the boundaries of the legal vocabularies recognized as self-justifying may have become less distinct over the past century.
A version of this chapter was previously published as ‘Legal Fictions and the Limits of Legal Language’ (2013) 4 International Journal of Law in Context 485–505.
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Notes
- 1.
Jeremy Bentham’s criticism of fictions in law focused on a similar subcategory of counterfactual propositions, as Michael Quinn explains in his contribution to this volume (Chap. 4).
- 2.
Many commentators thus, explicitly or implicitly, focus on the propositional content of such statements, rather than on their status and features as statements (e.g., Campbell 1983; see also Del Mar, this volume, Chap. 11). One exception is Louise Harmon, who recognized that “Fuller was the first writer on the subject to treat the legal fiction as a linguistic phenomenon” (Harmon 1990, p. 14; see also Soifer 1986, p. 915).
- 3.
Arguably, this characterization oversimplifies Bentham’s attitude toward the function of language (see Quinn, this volume, Chap. 4); still, Bentham explored the relation of fictions to communication in much greater detail than subsequent writers have.
- 4.
This impulse “is frequently the impulse to preserve a form of statement which will make the law acceptable to those who do not have the time or the capacity for understanding reasons which are not obvious—and this class sometimes includes the author of the statement himself” (Fuller 1930a, pp. 382–383; see also pp. 363–364, 380).
- 5.
The subject of Fuller’s third essay, Hans Vaihinger, shared the taxonomizing impulse, as the discussion below explains.
- 6.
Citations to Fuller’s essays and to the book collecting them that was published in 1967 have increased in recent decades. For instance, one or more of the essays have been cited a total of 111 times in subsequent articles indexed in Hein Online, while the book has been cited 249 times. (Searches run March 21, 2012.)
- 7.
Campbell writes, “Fictions are created by rules of law, but the relevant rules govern matters which the law itself regards as questions of fact. The fiction arises from the content of the rule being false when regarded as a question of fact according to non-legal classifications” (p. 359).
- 8.
Campbell concludes that legal fictions “are used to give any rule of law a wider, or narrower, ambit than it would have if applied non-fictitiously, while at the same time preserving the rule’s original form and the meaning of its terms. The change occurs by creating a supplementary rule in which factL, which is an antecedent in the principal rule, is not equivalent to factN. It is the discrepancy between the two classifications which not only explains what fictions are, but why they are so useful … Fictions are necessarily about changes in the application of the law” (p. 365).
- 9.
The fictions Soifer discusses include examples from literature and opinions of United States courts (pp. 883–905). Like Campbell, Soifer acknowledges the linguistic nature of fictions only briefly: “[W]e need fictions in and about law to challenge our nation’s complacent faith in American continuity and progress. We need words in law to learn the sins as well as the glories of the past, to give voice to current conflicts, and to retell and recreate our own myths” (p. 873).
- 10.
Smith presents six such categories: (1) fictions “based on a misunderstanding or misreading of empirical reality”; (2) fictions needed as a result of “the law’s general imperviousness to social science and change”; (3) fictions that serve as “devices, conscious or not, for concealing the fact that the judges are making normative choices in fashioning legal rules”; (4) fictions that serve as “devices for operationalizing legal theories”; (5) fictions that “serve functional goals and promote administrability in judicial process”; and (6) fictions that “serve a legitimating function” (pp. 1439–1440).
- 11.
Knauer writes, “Wrongly valued for their veracity, empirical legal errors are mistakes—not fictions. The discredited legal regimes of slavery and discovery … were not acknowledged to be false, despite being morally wrong. 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” (p. 49).
- 12.
- 13.
Samek separately addresses the theories of fictions advanced by Bentham, Vaihinger, and Fuller and, in the section on Fuller, begins not with Fuller’s definition and taxonomies but with Fuller’s consideration of Vaihinger (Samek 1981, pp. 292–314). Samek identifies Vaihinger’s most important advance over Bentham in theorizing fictions as his “Law of the Preponderance of the Means over the End,” which Samek relabels “the meta phenomenon” (pp. 290–291, 300).
- 14.
Ogden also collected Jeremy Bentham’s work on legal fictions in Ogden (1932).
- 15.
See above, note 12; another partial exception is Iser (1993, pp. 130–151).
- 16.
Fuller acknowledged this parallel, identifying Vaihinger’s views as “similar[ to] those of American Pragmatism” (Fuller 1930c, p. 879).
- 17.
Vaihinger regarded this development as a kind of law of nature (p. xxx), which Vaihinger dubbed the “Law of the Preponderance of the Means over the End”: “It is a universal phenomenon of nature that means which serve a purpose often undergo a more complete development than is necessary for the attainment of their purpose. In this case, the means, according to the completeness of its self-development, can emancipate itself partly or wholly and become established as an end in itself (Law of the Preponderance of the Means over the End)” (pp. xliii, xlvi).
- 18.
To Vaihinger, such “facts” as the mean of a population, for example, are kinds of fiction (p. 23). Hans Kelsen’s 1919 essay on Vaihinger, translated in this volume, also identifies this characteristic as central to Vaihinger’s understanding of fictions (Chap. 1). Kelsen also anticipated Fuller’s point regarding the parallel between such clarifying scientific fictions and “jurisprudential fictions,” discussed in the text.
- 19.
He writes, for example, “[S]ince laws cannot include within their formulae all particular instances, certain special examples of an unusual nature are treated as if they belonged to them. Or else, because of some practical interest, an individual interest is brought under a general concept to which it does not really belong. Anyone conversant with the method of jurisprudence will easily understand how important this artifice is for legal practice. It is just as essential for law as for mathematics…. Apart from mathematics there is hardly any domain more suitable than law for the deduction of logical laws and their illustration, or the discovery of logical methods” (p. 33; see also pp. 44, 51).
- 20.
Michael Quinn discusses Bentham’s treatment of the same category of “currency of law” fictions in his contribution to this volume (Chap. 4). For his part, Fuller, like Bentham, does acknowledge that not all legal fictions are of this variety: “[T]he fictions of emotional conservatism and of policy and apologetic and merciful fictions proceed from stresses in the judicial mind which, although probably not wholly unknown to the scientist, are nevertheless not an important factor in his mental life” (p. 906).
- 21.
Detailed summaries of the materials used by the author in these studies are available upon request.
- 22.
The large-scale, multi-text, historically sensitive scope of some discourse analysis is based on insights consistent with those presented by Maksymilian Del Mar in his contribution to this volume; discourse-analytic approaches could be ideal tools for the kind of diachronic inquiry he urges (Chap. 11).
- 23.
Bazerman explains, “[T]he essential social purpose of the communities examined here is to produce statements of knowledge…. [T]ext production is the goal, and the activity cannot be understood without seeing the centrality of texts…. Regularized forms of writing are social institutions, interacting with other social institutions” (p. 22).
- 24.
It is true as well of legal and, more specifically, judicial common-law communities of discourse over time, as Maksymilian Del Mar explains in his contribution to this volume (Chap. 11).
- 25.
Sentence subjects and themes are a traditional focus of English-language discourse analysis because they allow assessment of the referents, audience, and tone of discourse. MacDonald’s classification system comprises two general categories: “phenomenal” (“the material the researcher studies”) and “epistemic” (“the methods, conceptual tools, and previous research that the researcher brings to that material”) (p. 157). Within the phenomenal category she differentiates among (1) “particulars” (e.g., particular individuals), (2) “groups” (e.g., “estate holders”), and (3) “attributes” (e.g., “emotional responsibility”) (pp. 157–158). Within the epistemic category she differentiates between (4) “reasons” (e.g., “evidence” for a conclusion), (5) “research” (e.g., names or attributed findings of prior researchers), (6) “isms” (e.g., schools of academic thought), and (7) “audience” (e.g., “we”) (pp. 157–158).
- 26.
MacDonald notes, for example, that “the humanities tend to be rooted in phenomena, data, or texts which are potentially worth knowing about for their own sake … and … tend to involve more intermediary generalizations—such as literary texts—between raw phenomena and generalization, thereby creating their own phenomenal layers” (pp. 35–36).
- 27.
As MacDonald notes, at least up to the final quarter of the twentieth century, academic writing tended to be regarded as a means only, not a subject of study in itself (p. 5). One could see the work of Bazerman and MacDonald as examining Vaihinger’s Law of the Preponderance of the Means in operation. See supra note 17.
- 28.
As of August 3, 2011, Bazerman’s book had been cited in five law review articles according to Hein Online, five according to Westlaw (search run on “Shaping Written Knowledge”), MacDonald’s book had been cited in one law review article according to Hein Online, one according to Westlaw (search run on “Professional Academic Writing”/p MacDonald).
- 29.
Heavily used in United States legal briefs and judicial opinions, string cites consist of an unelaborated list of authorities supporting a proposition; their use is often criticized (e.g., Cooney 2006, pp. 44–45).
- 30.
These appearances include references in reports of arguments drafted by reporters (in early opinions), but exclude references to “fictions” alone. I analyzed six features of each reference: (1) the semantic referent of each one; (2) the grammatical subject of each sentence or independent clause containing the phrase; (3) the valence attached to the concept in each reference (positive, negative, or neutral); (4) whether the author of each reference accepted the fiction (i.e., endorsed it as a ground for further conclusions) or rejected it; (5) whether each reference was quoted from an earlier text or originated with the author; and (6) the type of opinion (majority, concurrence, dissent, or argument of counsel) in which each reference occurred. For more information about the analysis, see below, note 35.
- 31.
This perspective was inspired in part by Bazerman’s discussion of Ludwick Fleck’s theory of “active” and “passive” constraints on the activities of a “thought collective” or epistemic community (Bazerman 1988, pp. 312–313).
- 32.
A complementary explanation for this ambivalence is suggested by the other contributions to this volume. Some justices might well regard fictions, more or less consciously, as devices for communicating with future judges in situations where proof seems unusually, but systemically, difficult or where the reconciliation of existing norms with the apparent requirements of justice in a particular case suggests a need for modification of the rules (Chaps. 11 and 18). Justices might also, perhaps at the same time, perceive concepts or statements they label “fictions” as serving the power-consolidating, “investigation-stymieing” purposes Bentham criticized (Chap. 4). My argument is that the concepts and statements labeled “legal fictions” by Supreme Court justices often, perhaps usually, have both effects, in that they are simultaneously charitable and self-interested. They are self-interested because they do not seek to make explicit the arbitrary suspension of a proof requirement for equitable purposes, and they thus shield judges from criticism. They are charitable in that they indicate judges’ awareness that this denial of arbitrariness is inconsistent with other characteristic tropes of legal discourse and the virtues those tropes affirm, such as consistency and transparency.
- 33.
There were two references prior to 1800 (out of approximately 99 opinions), zero between 1800 and 1809 (out of 110), 3 between 1810 and 1819 (out of 330), 1 between 1820 and 1829 (out of 350), 7 between 1830 and 1839 (out of 400), 4 between 1840 and 1849 (out of 380), 2 between 1850 and 1859 (out of 860), 3 between 1860 and 1869 (out of 890), 2 between 1870 and 1879 (out of 1770), 1 between 1880 and 1889 (out of 2160), 5 between 1890 and 1899 (out of 2340), 4 between 1900 and 1909 (out of 1900), 2 between 1910 and 1919 (out of 2240), 8 between 1920 and 1929 (out of 1900), 13 between 1930 and 1939 (out of 1520), 5 between 1940 and 1949 (out of 1340), 8 between 1950 and 1959 (out of 900), 6 between 1960 and 1969 (out of 1000), 15 between 1970 and 1979 (out of 1300), 13 between 1980 and 1989 (out of 1400), 17 between 1990 and 1999 (out of 950), 14 between 2000 and 2009, and 6 so far since 2010. Estimated numbers of Supreme Court opinions per year per decade are taken from Lupu (1998, p. 1328 n. 22).
- 34.
The term first appeared in a mid-nineteenth-century dissenting opinion. Woodruff v. Trapnall (1850) 51 U.S. 190, 216 (Grier, J., dissenting) (“The statutory proceeding is only held a judgment, as a mere legal fiction, and cannot stand in the way of a court of equity.”).
- 35.
- 36.
I departed from MacDonald’s list of seven categories (see above, note 24) because certain features of the language used in judicial decisions seemed to call for further specification. The ten categories into which I sorted semantic referents and grammatical subjects were: (A) Phenomenal, consisting of (1) particulars (historical events, individuals); (2) groups, including institutions (e.g., Congress, courts); and (3) attributes, including nonlegal qualities (e.g., hesitation); (B) Epistemic, consisting of (4) reasons, bases, arguments, justifications, and positions; (5) research; (6) legal authority (e.g., precedent); (7) -isms, legal doctrines, and schools of thought; and (8) audience (e.g., the public, you); and (C) Epistemic-Phenomenal, consisting of (9) legal status, rights, relationships, and duties; and (10) counterfactual propositions (e.g., mental states of collective bodies).
- 37.
Samantar v. Yousuf (2010) 130 S. Ct. 2278, 2286 (Stevens, J.); Citizens United v. Federal Election Comm’n (2010) 130 S. Ct. 876, 972 (Stevens, J., conc. in part and dissenting in part).
- 38.
Fisher v. Hurst (1948) 333 U.S. 147, 152 (Rutledge, J., dissenting).
- 39.
Dakin v. Bayly (1933) 290 U.S. 143, 157 (Stone, J., dissenting).
- 40.
Jerman v. Carlisle, McNellie, Rini, Kramer and Ulrich LPA (2010) 130 S. Ct. 1605, 1625 (Scalia, J., conc. in part & conc. in judgment).
- 41.
Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 363 (Brennan, J., dissenting); Rosenbloom v. Metromedia (1971) Inc., 403 U.S. 29, 48 (Brennan, J.).
- 42.
There are 2 examples of category 1 referents (particulars), none of category 2 referents (groups, including institutions), 1 of category 3 referents (nonlegal attributes of particulars or groups), 14 of category 4 referents (reasons, bases, arguments, justifications, positions), none of category 5 referents (research, although in the judicial opinion context this category is not easy to distinguish from category 7), 2 of category 6 referents (legal authority or precedent), 18 of category 7 referents (-isms, doctrines, schools of thought, disciplines), none of category 8 referents (audience), 67 of category 9 referents (legal status, relationship, rights, duties), and 34 of category 10 referents.
- 43.
The earliest references to counterfactual propositions are Ribnik v. McBride (1928) 277 U.S. 350, 355 (Sutherland, J.); Tyson & Bro.-United Theatre Ticket Offices v. Banton (1927) 273 U.S. 418, 438 (Sutherland, J.). These earliest examples could also have been classified as references to legal rights or status.
- 44.
See discussion supra note 19 and accompanying text.
- 45.
To analyze this function, I examined the number of independent clauses in which the term “legal fiction” operated as the grammatical subject, the referent category of the term in each clause, and for those clauses with grammatical subjects distinct from the phrase, the referent category for that subject. I included sentences and independent clauses in which the term “legal fiction” is part of a noun phrase as grammatical subject, but not sentences in which the phrase is a subject complement or the referent of a pronoun. If complements and pronoun referents were included, the count would increase about threefold.
- 46.
As MacDonald notes, “When ‘subject’ and ‘topic’ do not coincide, the usual explanation is that some other strategy involving focus or emphasis has caused the nontopical word to occur in the subject position. I … argue that if the subject position is the natural place for topical focus to occur, whatever we find in the subject position should be taken very seriously as an indication of agency or epistemic accounting” (MacDonald 1994, pp. 153–154).
- 47.
Of the 12 examples, one is from 1836, one from 1902, one from 1905, one from 1911, one from 1928, one from 1939, one from 1948, one from 1975, one from 1980, one from 1982, and one (the most recent) from 1989.
- 48.
In each of the clauses in which the term coincides with the grammatical subject, the referent/subject falls into either subcategory four (reasons) or subcategory nine (legal status). But the most common subcategory for grammatical subjects in general is not subcategory nine or ten (as was the case with referents for the phrase “legal fiction”), but subcategory four (reasons or bases), an epistemic subcategory, followed by subcategories one (particulars) and two (groups), both phenomenal subcategories that the referents of the term rarely fell into. This pattern has been consistent over time. The specific counts for grammatical subjects are as follows: 21 subjects in category 1, 22 in category 2, 7 in category 3, 46 in category 5, zero in category 5, 16 in category 6, 15 in category 7, 1 in category 8, 10 in category 9, and 5 in category 10.
- 49.
See, e.g., Samantar v. Yousuf (2010) 130 S. Ct. 2278, 2286 (Stevens, J.) (“But the phrase ‘separate legal person” typically refers to the legal fiction that allows an entity to hold personhood separate from the natural persons who are its shareholders or officers.”).
- 50.
Central Greyhound Lines of N.Y. v. Mealey (1948) 334 U.S. 653, 659–660 (Frankfurter, J.).
- 51.
See above, note 30.
- 52.
I gathered the articles through a Hein Online search for articles containing the phrase “expert evidence” and receiving more than 75 citations, on Hein Online’s count, as of July 12, 2011. I discarded articles not addressing the use of scientific or technical knowledge and discourse and excerpted the first and last sentence of each article to analyze (1) whether the opening sentence stated a proposition presented as uncontroversial or identified a puzzle; (2) whether the opening sentence contained a descriptive or normative proposition; (3) whether the assertion in each closing sentence was concrete or abstract (roughly, phenomenal or epistemic in MacDonald’s terms, see supra note 24); and (4) using the classification described supra note 35, the subcategory for the grammatical subject and rhetorical theme of each sentence, as well as whether the subject and theme coincided in each sentence.
There has been an increase over time in the number of highly cited articles addressing this set of topics, with twenty of the fifty-two examples in the study having been published in the 1980s. Admissibility has been the most popular subject among the highly cited articles since the beginning of the period covered; psychology and psychiatry begin to compete with this subject in prominence in the 1950s.
- 53.
The number of articles opening with propositional and puzzle sentences per decade were as follows: from 1900 to 1909, 1 propositional, 0 puzzle; from 1910 to 1919, and from 1920 to 1929, no articles in the study; from 1930 to 1939, 1 propositional, 0 puzzle; from 1940 to 1949, 0 propositional, 1 puzzle; from 1950 to 1959, 2 propositional, 1 puzzle; from 1960 to 1969, 3 propositional, 2 puzzle; from 1970 to 1979, 7 propositional, 2 puzzle; from 1980 to 1989, 9 propositional, 11 puzzle; from 1990 to 1999, 6 propositional, 5 puzzle; from 2000 on, 0 propositional, 1 puzzle.
It might be that puzzle sentences are more commonly used to open articles that address topics of transient interest or unsettled conceptualization and that compete with articles addressing the same topic in different terms; that over time, the vocabulary used to discuss such topics settles into a specific pattern; and that, as a result, the articles most cited over the longer term are those addressing topics of more lasting concern or, perhaps, summarizing the vocabularies used to discuss new topics, and thus are more likely to open with propositional sentences. If so, we would expect to find that the rate of citation of articles with puzzle opening sentences would decrease once the articles reached a certain age. Further study might make it possible to draw firmer conclusions on these points.
- 54.
An example of an “abstract” opening sentence appears in the earliest article in the group: “No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes” (Hand 1901, p. 40). The earliest example of a “concrete” opening sentence appeared in 1970: “In People v. Collins, the Supreme Court of California rejected a prosecutor’s effort to link the defendants to a crime by using mathematical statistics” (Finkelstein and Fairley 1970, p. 489). The number of articles with abstract and concrete opening sentences were as follows: from 1900 to 1909, 1 abstract, 0 concrete; from 1910 to 1919, and from 1920 to 1929, no articles in the study; from 1930 to 1939, 1 abstract, 0 concrete; from 1940 to 1949, 1 abstract, 0 concrete; from 1950 to 1959, 3 abstract, 0 concrete; from 1960 to 1969, 5 abstract, 0 concrete; from 1970 to 1979, 8 abstract, 1 concrete; from 1980 to 1989, 15 abstract, 5 concrete; from 1990 to 1999, 7 abstract, 4 concrete; from 2000 on, 1 abstract, 0 concrete.
- 55.
An example appeared in a 1939 article on blood alcohol test evidence: “Historically, the legal inhibitions could not apply to the blood test, and today the modern development of the law is moving in the direction of wider admissibility of evidence wherever new proof will aid the courts in a just determination of the causes which come before them” (Ladd and Gibson 1939, p. 267).
- 56.
A good example appeared in a mid-twentieth-century article on the general topic of codifying rules for expert testimony: “There is everything to be gained and nothing to be lost by the adoption of the Model Acts” (Ladd 1952, p. 431).
- 57.
The number of articles with descriptive and normative closing sentences were as follows: from 1900 to 1909, 1 descriptive, 0 normative; from 1910 to 1919, and from 1920 to 1929, no articles in the study; from 1930 to 1939, 1 descriptive, 0 normative; from 1940 to 1949, 1 descriptive, 0 normative; from 1950 to 1959, 2 descriptive, 1 normative; from 1960 to 1969, 2 descriptive, 3 normative; from 1970 to 1979, 2 descriptive, 7 normative; from 1980 to 1989, 7 descriptive, 13 normative; from 1990 to 1999, 2 descriptive, 9 normative; from 2000 on, 1 descriptive, 0 normative.
- 58.
- 59.
Only one article, an anomaly in that it was a book review rather than a free-standing argument, had an arguably concrete closing sentence: “Galileo would attribute the prominence of the book and its author to clever public relations, not merit, and would denigrate it as junk scholarship in search of ‘junk science.’ Such would be Galileo Galilei’s retort to Peter Huber” (Chesebro 1993, p. 1726).
- 60.
There are 13 opening sentences with category-1 subjects (8 propositional and 5 puzzle), 11 with category-2 subjects (5 propositional and 7 puzzle), 4 with category-3 subjects (2 propositional and 2 puzzle), 2 with category-4 subjects (both propositional), 1 with category-5 subjects (propositional), 1 with a category-6 subject (puzzle), 15 with category-7 subjects (9 propositional and 6 puzzle), 2 with category-8 subjects (1 proposition, 1 puzzle), 2 with category-9 subjects (1 propositional and 1 puzzle), and 1 with a category-10 subject (propositional).
- 61.
There are five closing sentences with category-1 subjects (4 descriptive and 1 normative), 14 with category-2 subjects (3 descriptive and 11 normative), 6 with category-3 subjects (3 descriptive and 3 normative), 8 with category-4 subjects (2 descriptive and 6 normative), 1 with a category-5 subject (normative), 1 with a category-6 subject (1 descriptive and 1 normative), 10 with category-7 subjects (6 descriptive and 4 normative), 1 with a category-8 subject (normative), 2 with category-9 subjects (both normative), and 3 with category-10 subjects (all normative).
- 62.
For a complementary account of the results of a similar trend in one particular area of United States law, see Randy Gordon’s contribution to this volume (Chap. 18).
References
Allen, Ronald, and Michael S. Pardo. 2002. The myth of the law-fact distinction. Northwestern University Law Review 97:1769–1808.
Bazerman, Charles. 1988. Shaping written knowledge: The genre and activity of the experimental article in science. Madison: University of Wisconsin Press.
Black, Bert. 1988. A unified theory of scientific evidence. Fordham Law Review 56:595–696.
Campbell, Kenneth. 1983. Fuller on legal fictions. Law & Philosophy 2:339–370.
Chesebro, Kenneth J. 1993. Galileo’s Galileo’s retort: Peter Huber’s junk scholarship (book review). American University Law Review 42:1637–1726.
Cooney, Mark. 2006. Stringing readers along. Michigan Bar Journal 2006:44–45.
Cover, Robert M. 1986. Violence and the word. Yale Law Journal 95:1601–1630.
Del Mar, Maksymilian. 2014. Legal fictions and legal change in the common law tradition. In Legal fictions in theory and practice, ed. Maksymilian Del Mar and William Twining. Dordrecht: Springer.
Fineman, Martha L., and Anne Opie. 1987. The uses of social science data in legal policymaking: Custody determinations at divorce. Wisconsin Law Review 1987:107–158.
Finkelstein, Michael O., and William B. Fairley. 1970. A Bayesian approach to identification evidence. Harvard Law Review 83:489–517.
Fisher, Franklin M. 1980. Multiple regression in legal proceedings. Columbia Law Review 80:702–736.
Fuller, Lon L. 1930a. Legal fictions. Illinois Law Review 25:363–399.
Fuller, Lon L. 1930b. Legal fictions. Illinois Law Review 25:513–546.
Fuller, Lon L. 1930c. Legal fictions. Illinois Law Review 25:877–910.
Gordon, Randy D. 2014. Fictitious Fraud: Economics and the presumption of reliance. In Legal fictions in theory and practice, ed. Maksymilian Del Mar and William Twining. Dordrecht: Springer.
Guinier, Lani. 2008. The supreme court, 2007 term—Foreword: Demosprudence through dissent. Harvard Law Review 122:4–138.
Hall, Jerome. 1956. Psychiatry and criminal responsibility. Yale Law Journal 65:761–785.
Halliday, M. A. K. 1973. Explorations in the functions of language. London: Edwin Arnold.
Hand, Learned. 1901. Historical and practical considerations regarding expert testimony. Harvard Law Review 15:40–58.
Hans Kelsen. 2014. On the theory of juridic fictions. With special consideration of Vaihinger’s Philosophy of the as-if. In Legal fictions in theory and practice, ed. Maksymilian Del Mar and William Twining. Dordrecht: Springer.
Harmon, Louise. 1990. Falling off the vine: Legal fictions and the doctrine of substituted judgment. Yale Law Journal 100:1–72.
Harner, Michelle M., and Jason A. Cantone. 2011. Is legal scholarship out of touch? An empirical analysis of the use of scholarship in business law cases. University of Miami Business Law Review 19:1–50.
Iser, Wolfgang. 1993. The fictive and the imaginary: Charting literary anthropology. Baltimore: Johns Hopkins University Press.
Knauer, Nancy J. 2010. Legal fictions and juristic truth. St. Thomas Law Review 23:1–49.
Ladd, Mason. 1952. Expert testimony. Vanderbilt Law Review 5:414–431.
Ladd, Mason, and Robert B. Gibson. 1939. The medico-legal aspects of the blood test to determine intoxication. Iowa Law Review 24:191–267.
Lupu, Ira C. 1998. Time, the supreme court, and the federalist. George Washington Law Review 66:1324–1336.
McCord, David. 1987. Syndromes, profiles and other mental exotica: A new approach to the admissibility of nontraditional psychological evidence in criminal cases. Oregon Law Review 66:19–218.
McCormick, Mark. 1982. Scientific evidence: Defining a new approach to admissibility. Iowa Law Review 67:879–916.
MacDonald, Susan Peck. 1994. Professional academic writing in the humanities and social sciences. Edwardsville: Southern Illinois University Press.
Mellinkoff, David. 1962. The language of the law. Boston: Little, Brown & Company.
Note. 1962. Impact of medical knowledge on the law relating to prenatal injuries. University of Pennsylvania Law Review 110:554–601.
Note. 1975. Beyond the prima facie case in employment discrimination law: Statistical proof and rebuttal. Harvard Law Review 89:387–421.
Note. 2002. Lessons from abroad: Mathematical, poetic, and literary fictions in the law. Harvard Law Review 115:2228–2249.
Note. 2011. From consensus to collegiality: The origins of the “respectful” dissent. Harvard Law Review 124:1305–1326.
Ogden, Charles Kay. 1932. Bentham’s theory of fictions. New York: Kegan Paul, Trench, Trubner.
Petherbridge, Lee, and David L. Schwartz. 2011. An empirical assessment of the supreme court’s use of legal scholarship. Cornell Law Review 96:1345–1374.
Petroski, Karen. 2012. Does it matter what we say about legal interpretation? McGeorge Law Review 43:359–402.
Primus, Richard. 1998. Canon, anti-canon, and judicial dissent. Duke Law Journal 48:243–304.
Quinn, Michael. 2014. Fuller on legal fictions: A benthamic perspective. In Legal fictions in theory and practice, ed. Maksymilian Del Mar and William Twining. Dordrecht: Springer.
Risinger, D. Michael. 2000. Navigating expert reliability: Are criminal standards of certainty being left on the dock? Albany Law Review 64:99–152.
Samek, Robert. 1981. Fictions and the law. University of Toronto Law Journal 31:290–317.
Sanders, Joseph. 1993. From science to evidence: The testimony on causation in the Bendectin cases. Stanford Law Review 46:1–86.
Schauer, Frederick. 1995. Giving reasons. Stanford Law Review 47:633–660.
Short, Jodi L. 2012. The political turn in American administrative law: Power, rationality, and reasons. Duke Law Journal 61:1811–1882.
Skolnick, Jerome H. 1961. Scientific theory and scientific evidence: An analysis of lie-detection. Yale Law Journal 70:694–728.
Slobogin, Christopher. 1984. Dangerousness and expertise. University of Pennsylvania Law Review 133:97–174.
Smith, Peter J. 2007. New legal fictions. Georgetown Law Journal 95:1435–1496.
Smith, Hubert Winston, and Harry C. Solomon. 1943. Traumatic neuroses in court. Virginia Law Review 30:87–175.
Soifer, Aviam. 1986. Reviewing legal fictions. Georgia Law Review 20:871–915.
Stack, Kevin M. 1996. The practice of dissent in the supreme court. Yale Law Journal 105:2235–2260.
Staszewski, Glen. 2009. Reason-giving and accountability. Minnesota Law Review 93:1253–1326.
Swales, John M. 1990. Genre analysis: English in academic and research settings. Cambridge: Cambridge University Press.
Twining, William. 2006. Taking facts seriously. In Rethinking evidence: Exploratory essays, ed. William Twining, 14. Cambridge: Cambridge University Press.
Vaihinger, Hans. 1924. The philosophy of ‘As as If’if’: A system of the theoretical, practical and religious fictions of mankind. Trans.: C.K. Ogden. New York: Harcourt, Brace & Company.
Wicker, William. 1953. The polygraphic truth test and the law of evidence. Tennessee Law Review 22:711–727.
Acknowledgements
Thanks to Jonathan Bollozos and Erin McGowan for research assistance, to the Saint Louis University School of Law Summer Faculty Scholarship Stipend Program for support, and to Maksymilian Del Mar and the participants in the Special Workshop on Legal Fictions at the XXV World Congress of the IVR in August 2011.
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Petroski, K. (2015). Legal Fictions and the Limits of Legal Language. In: Del Mar, M., Twining, W. (eds) Legal Fictions in Theory and Practice. Law and Philosophy Library, vol 110. Springer, Cham. https://doi.org/10.1007/978-3-319-09232-4_7
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