Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful. In this usage, a legal fiction begins as a metaphor, asserting an equivalence, and yields a series of far-reaching implications that radiate out from the premise. Corporate personhood is called a legal fiction (according to this view) because the label is taken to present corporations as embodied entities. This premise may lead to conjectures about exactly which human traits might be attributed to a corporation, or what other entities are also endowed with these traits. The ultimate product might be a world populated by animate objects, like an eighteenth-century it-narrative gone wild. Examined through a critical lens, the imaginative world inhabited by these legal persons would open up the kinds of questions about “character-space” and competition that Alex Woloch considers, as aspects of sparsely and densely populated novels, in The One vs. The Many. Civil death is called a legal fiction because it treats convicted criminals as if they were dead, rendering them incapable of bringing an action or serving as a witness. Once recognized as figurations of the undead, they might be thought to take on other zombie-like features as well, and that suggestion might raise any number of comparisons with recent novels and television series. While explorations of this sort have a crucial role play in research on legal doctrines and devices – which too often are assumed to lack any such imaginative dimensions – in this talk I will argue that these inquiries do not rely on the legal fiction as a framing device; rather, they proceed from the analogical basis of legal reasoning as a routine practice.
Simon Stern teaches in the areas of civil procedure, law and literature, legal history, and criminal law. His research focuses on the evolution of legal doctrines and methods in relation to literary and intellectual history. Current research topics include the adoption of the analytical method in the nineteenth century and its effects on modern legal reasoning and writing; the development of the "reasonable man" standard (and its precursors and analogues) since the eighteenth century; the history of the case method and the form of the case; the history of copyright law and its relation to contemporary issues in intellectual property; and relations between legal and literary views of authorial responsibility, and the forms of liability that may arise when the two coincide.
