Letter From America: Should Legal Fiction Be Redefined or Rejected?

Signet Magazine

The noted American legal philosopher Lon Fuller once suggested that “a fiction is intended to escape the consequences of an existing, specific rule of law”. I think that is right, but I think the matter can be even more complicated. Specifically, courts often resort to multiple, nested fictions in deciding cases and, moreover, those fictions may themselves be the result of or required by pre-existing fictions. Put in more common parlance, one falsehood may father a thousand others. To explore this concept, I propose that we adopt a loose, literary definition of “fiction” (i.e., under this construct, a fiction need not be wholly false) and consider how things work in claims of securities fraud in the class-actions context.

In the leading case of Basic, Inc. v. Levinson, the United States Supreme Court faced the problem that fraud-based claims require a showing of “reliance” and that this typically must be done on an individual basis (which would make a class action impossible). To slip the individual reliance knot, the court invoked the fraud-on-themarket theory (i.e., the principle that the “reliance” requirement can be dispensed with in the case of efficient capital markets). In adopting the theory, the court tacitly agreed with the District Court, which had “found that the presumption of reliance created by the fraud-on-the-market theory provided “a practical resolution to the problem of balancing the substantive requirement of proof of reliance in securities cases against the procedural requisites of [Federal Rule of Civil Procedure] 23.” Interestingly, though, the court seemed to hint that the theory might have no solid foundation: “Our task, of course, is not to assess the general validity of the theory…”

With the stage thus dressed, the court set out to justify its resort to this construct. First, it catalogued the salutary uses of presumptions in law: “Presumptions typically serve to assist courts in managing circumstances in which direct proof, for one reason or another, is rendered difficult”. Fuller would probably concede this point, but in his estimation, a “conclusive presumption attributes to the facts ‘an arbitrary effect beyond their natural tendency to produce belief’”. It “attaches to any given possibility a degree of certainty to which it normally has no right. It knowingly gives an insufficient proof the value of a sufficient one”. A conclusive presumption is thus fictional, even though its application in any given case may square with truth. With respect to rebuttable presumptions,Fuller observes that: “Some rebuttable presumptions have, in the course of time, gathered about them rules declaring what is sufficient to overcome them. So soon as you have begun to limit and classify those things which will rebut a presumption you are importing into the facts ‘an arbitrary effect’ beyond their natural tendency to produce belief.” Accordingly, then, “[n]o presumption can be wholly non-fictitious which is not ‘freely’ rebuttable”.

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