Berkeley Program in Law and Economics
Legal Fictions as Strategic Instruments
- Author(s): Klerman, Daniel
- et al.
Legal Fictions were one of the most distinctive and reviled features of the common law. Until the mid-nineteenth century, nearly every civil case required the plaintiff to make a multitude of false allegations which judges would not allow the defendant to contest. Why did the common law resort to fictions so often? Prior scholarship attributes legal fictions to a "superstitious disrelish for change" (Maine) or to a deceitful attempt to steal legislative power (Bentham). This paper provides a new explanation. Legal fictions were developed strategically by litigants and judges in order to evade appellate review. Before 1800, judicial compensation came, in part, from fees paid by litigants. Because plaintiffs chose the forum, judges had an incentive to expand their jurisdictions and create new causes of action. Judicial innovations, however, could be thwarted by appellate review. Nevertheless, appellate review was ordinarily restricted to the official legal record, which consisted primarily of the plaintiff's allegations and the jury's findings. Legal fictions effectively insulated innovation from appellate review, because the legal record concealed the change. The plaintiff's allegations were in accord with prior doctrine, and the defendant's attempt to contest fictitious facts was not included in the record.