Document Type

Working Paper

Publication Date

2014

Abstract

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, understood to underpin many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a new way to understand them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines regarding how we use and respond to statements about fictional states of affairs. The comparisons indicate that judges’ imputations of unrealistic knowledge to legislatures are best seen not as unfair demands, but as important parts of the story judges typically tell about the law in our legal system, according to which the legislature and judiciary play complementary roles in pursuit of compatible goals. Rather than impairments of judicial legitimacy, these imputations are descriptions of the necessarily aspirational grounds of legal legitimacy.

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