ABSTRACT
This chapter suggests a more nuanced account of "fact" and "fiction" that can explain how popular culture's equation of law with fiction and lawyers' aversion to that equation might both be justified. It shows how a more sensitive view of fictional discourse and of its specific kinships with legal discourse might have the desirable side effect of making visible new ways to think and talk about fact. The justices—and lawyers more generally—rely on two flawed and partly overlapping notions of "fiction." One is specific to law: legal fictions are communicative and reasoning devices by which lawyers agree to treat one situation as if it were another one. Some legal fictions are so familiar to lawyers that they are no longer called "fictions," but are labeled in a less provocative way. This "fiction," unlike the legally appropriate "skilled artisan" fiction, is illegitimate, according to Justice Thomas.
