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Article Title

Fictions of Omniscience

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, thought to underlie many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a different way of understanding 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 on the use and comprehension of statements about fictional situations. The comparisons suggest that, although judges impute unrealistic knowledge to legislatures, that imputation need not be characterized as an unrealistic demand or a naive simplification of reality. Rather, the imputation is an important part of the account judges in our legal system typically give of legislative power. According to that account, the legislature, responsible for uttering the law, must have at least as much awareness of the law's content as the judiciary does. Whether such awareness is possible is beside the point. Rather than impairments of judicial legitimacy, judicial imputations of omniscience to the legislature are descriptions of the necessarily aspirational grounds of legal legitimacy.

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