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Building on existing scholarship on legal fictions and empirical psychological research about human decision making processes, this Article offers a systematic approach to distinguishing a dangerous legal fiction from a benign one.

This Article begins by summarizing scholarly discussions about legal fictions in general, courts’ typical uses of legal fiction, and more general concerns with legal fictions. Part II of the Article summarizes scientific findings about how humans think and what our common cognitive biases are. It then explains how findings regarding the human decision-making process may shed light on why certain legal fictions can be dangerous. This Section also discusses how we can overcome cognitive biases and answers the question why awareness of the fictitious nature of a doctrine may make it “safe.” Studies have shown that judges may be reminded of their own decision making process and be able to engage in more critical analyses to ameliorate the concerns regarding legal fictions.

Part III offers a systematic approach to distinguishing benign from dangerous legal fictions based on a review of selected legal fictions. This Article suggests that a benign fiction comes with some built-in reminders of its fictional nature while a dangerous fiction does not. A fiction may be benign or dangerous depending on the presence of any or all of the following characteristics: Whether or not the fiction (1) is labeled explicitly as a fiction; (2) rests on complete factual falsity instead of reduction of evidentiary proof; or (3) allows the court to reach a result consistent with well-established legal or other social values. The presence of one or more of these factors creates awareness that the doctrine is a fiction and thus safeguards against uncritical excessive use. Without those reminders, legal fiction can become “dangerous.” Lack of built-in reminders makes it more likely judges may use legal fictions for purposes not intended by the fictitious doctrine.

Finally, Part IV uses the consent doctrine in contract law as an example of a dangerous fiction. This Section briefly traces the evolution of the consent doctrine from the early twentieth century and shows how consent in many situations has evolved into a legal fiction due to technological advances, in particular ecommerce. Part V offers an example of how the consent fiction, when uncritically adopted, poses a “danger” to our society and has become a tool to deprive many people of their day in court because of courts’ willingness to enforce arbitration “agreements” based on the fiction.



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