Comments on: Interpretive Fictions in Constitutional Law

By: Phil Neujahr

Phil Neujahr — Wed, 06 Jan 2010 04:28:32 +0000

Seems like they bring something unique to the table that most texts can’t…

By: Brett Bellmore

Brett Bellmore — Fri, 11 Dec 2009 13:31:58 +0000

“Why, then, do we continue to insist that we have a codified Constitution?”

Because we do. We’re just violating it. But that doesn’t mean we don’t have one.

How about the “enrolled bill” rule?

By: Alan

Alan — Fri, 11 Dec 2009 01:43:00 +0000

The guilty-property fiction. (Not to criticize this particular fiction.)

By: James A.W. Shaw

James A.W. Shaw — Thu, 10 Dec 2009 18:26:44 +0000

My favorite such fiction is that employees “agree” to the “contract” of at-will employment. While predominantly a common-law concept, it gets play also when considering the constitutional rights of public employees.

By: Josh Blackman

Josh Blackman — Thu, 10 Dec 2009 17:39:38 +0000

Perhaps one of the greatest legal fictions we have is the modern selective incorporation doctrine through the due process clause.

Another fiction is treating a corporation as a person.

I recently wrote a post on constitutional legal fictions that may be useful http://joshblackman.com/blog/?p=1079

Also Eugene Volokh wrote an interesting post on believing in legal fictions http://www.volokh.com/posts/1169074858.shtml

By: ..anon

..anon — Thu, 10 Dec 2009 17:11:45 +0000

does in rem jurisdiction (“the thing committed the crime”) implicate constitutional law?

By: Anon

Anon — Thu, 10 Dec 2009 15:44:16 +0000

Ex Parte Young to get around the Eleventh Amendment