Stern on Legal Fictions and Legal Fabrication @ArsScripta

Simon Stern, University of Toronto Faculty of Law, has published Legal Fictions and Legal Fabrication at Fictional Discourse and the Law 191 (Hans Lind, ed., Routledge, 2020).

This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. Sumner offers a genealogical account: on his view a doctrine’s fictional status depends crucially on the doctrine’s source — and yet scholars who draw on his theory rarely pay any heed to this criterion. For Fuller, the fictional status of a doctrine depends on its falsity, and this requirement, too, accords poorly with the category of legal fictions, when we consider the examples that usually account for scholarly interest in the subject. I suggest that a better way of understanding legal fictions is to see them as achieving, in legal thought, what metafiction achieves in the literary realm. I close by developing some implications of this analogy.

Download the essay from SSRN at the link.

Maks del Mar on Law and the Legal Imagination @maksdelmar @aeonmag

Maks del Mar writes about why imagination is a necessity for judges and lawyers. A brilliant essay. Here, for Aeon. 

Reynolds on Truth and the Trial Lawyer @Oregon_Law

Jennifer Reynolds, University of Oregon School of Law, has published Truth and the Trial Lawyer at Trial Lawyer, Summer 2017, at 13. Here is the abstract.

Lawyers routinely deal in fictions, so much so that they are somtimes criticized as professional liars. But can this proficiency with storytelling actually bring us closer to the truth?

Download the essay from SSRN at the link.

Leung on Translation Equivalence as Legal Fiction

Janny H. C. Leung, University of Hong Kong, Faculty of Arts, School of English, has published Translation Equivalence as Legal Fiction in The Ashgate Handbook of Legal Translation 57 (K. K. Sin, A. Wagner, and L. Cheng, eds.; Ashgate, 2016). Here is the abstract.

A translated text shall be the same as the original text. This simple and often assumed, but hardly incontrovertible requirement provides the foundation of the language policy of many bilingual or multilingual jurisdictions (hereafter, ‘bilingual jurisdictions’). An important question associated with the proposition persists, however, regarding the kind of equivalence that underlies the stated notion of ‘sameness’. Bilingual jurisprudence assumes that a translation and its original will carry the same meaning. Yet such an assumption is frequently challenged by instances where textual differences are discovered that call for painstaking reconciliation based on interpretative principles. Although it is widely recognised outside law that translations can hardly be perfect, bilingual legal systems rely on an unsafe assumption of translation equivalence, presumably because for law in particular the notion has a certain utility. Is textual equivalence, in these circumstances, a legal fiction (as historically ‘benefit of clergy’, John Doe and ‘steward of the Chiltern Hundreds’ were, and others remain today)? If so, what function, as a part of legal reasoning, does this putative legal fiction serve? This chapter analyses the specific nature and significance of translation equivalence as a legal fiction, as well as the purposes it may serve. That analysis is then used to illustrate broader issues regarding law, translation, and the relationship between the two.

Download the essay from SSRN at the link.

Savannah Law School: @SavannahLawSch CFP for a Colloquium on American Legal Fictions

I am plagiarizing heavily from the Savannah Law Review's announcement of its September 2016 colloquium examining the influence of fictions on the law (because it's a PDF and I hate converting PDFs into Word for use on this blog).

Here's the skinny. Professor Garrett Epps (University of Baltimore School of Law) will present the keynote. The Law Review is accepting abstract (no more than 500 words) until August 22, 2016. Interdisciplinary submissions are apparently encouraged. I'm tempted to send in something, because I actually published a piece called Legal Fictions some years ago.

Here's more on the colloquium.

Lies and Truth In the Constitution

Mary Anne Franks, University of Miami School of Law, is publishing Where the Law Lies: Constitutional Fictions and Their Discontents in Law and Lies: Deception and Truth-Telling in the American Legal System (Austin Sarat, ed.; Cambridge University Press, 2015). Here is the abstract.

My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.

Download the essay from SSRN at the link.

Law, Narrative, and the Use of Legal Fictions

Simon Stern, University of Toronto Faculty of Law, is publishing Legal and Literary Fictions in New Directions in Law and Literature (Elizabeth Anker and Bernadette Meyler, forthcoming). Here is the abstract.

Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful. When doctrines such as corporate personhood and civil death are seen as fictional, this characterization depends on the starting point, but also on what flows from it. The fiction, it seems, holds the seed of a plot, and this latent narrative potential explains why legal fictions are sometimes likened to literary fictions. However, given that common-law judgments present themselves as rooted in precedent and are written in anticipation of their own use as precedents, this narrative potential is an ordinary feature of the law, not a distinctive quality of a few judgments or doctrines. Judgments, like Tribbles, are born pregnant, always capable of spawning. To single out, as fictions, a few that are wrapped in openly metaphorical language would imply that other doctrines, sparer of their means and more banal in their mode of expression, lack this quality. Thus to question the characterization of corporate personhood as a legal fiction is not to limit the scope of narratological inquiry in legal analysis, but to broaden that scope to include areas not usually considered to exhibit such self-consciously literary features as metaphor. As to legal fictions in particular, I argue that if they display a generative potential that invites analogy to literary fictions, that kinship owes more to the ways in which both fictional modes solicit a particular kind of attention, than to a shared ability to spin out narrative arrays. To develop these ideas, I consider the relation between patent misuse and copyright misuse; the question of whether steamboats are "floating inns"; the relation between legal fictions and what recent scholarship by literary critics has called "unnatural narrative"; and Duchamp's "Fountain" (1917).

Download the essay from SSRN at the link.