Cognitive fictionalizing in U.S. legal education and culture

Law students in the United States are asked to imagine alternatives from the very' beginning of their education. On the first day of their first class, their professors will as likely' as not pose hypothetical questions to students based on the day’s reading or on other students’ responses to the professor’s questions. Hypotheticals “help define the boundaries between those situations where the rules apply and those where they do not”³⁶ and thus help students understand how a legal rule works, as well as what it say's. Similarly, law school examinations and bar examinations do not ask examinees simply to recite rules but typically require written legal analysis of hypothetical scenarios.³⁷ This approach tests students’ skills in “problem identification and definition” as well as information retention and problem-solving. These approaches to instruction and examination have been central to American legal education since at least the early twentieth century’,³⁸ and they' would have been part of McCulloch’s legal education at Saint Louis University. Despite their consistent use, however, and the frustration they' cause many novice law students, they have received very’ little direct academic scrutiny.³⁹

Law professors’ classroom use of hypothetical questions makes sense. It is not just that hypothetical questions help students understand legal rules; students benefit in other ways from developing comfort in analyzing imagined or supposed scenarios. Practicing lawyers need to imagine alternative possible courses of events in many different settings, including client advising (“If you breach contract X, the result might be Y; it’s also possible, but less likely, that Z could happen”) and the development of legal strategy (“If we file motion X, our adversary' is likely to respond with cross-motion Y; it’s also possible, but less likely, that our adversary' will do Z”). Much legal doctrine also requires analysis or argument in explicitly' hypothetical form. Legal attributions of causal effect are based on counterfactual reasoning, as are legal determinations of monetary relief.⁴¹ Many other doctrines, especially but not only procedural doctrines, similarly involve the juggling and assessment of possibilities. McCulloch’s arguments for dismissal of an anonymous grand juror’s lawsuit against him relied heavily on several of these doctrines, including those of standing, ripeness, and failure to state a plausible claim. Each of these doctrines allows a court to decline to adjudicate an action when the plaintiff has not brought the “possible world” described in his or her complaint close enough to the actual world as perceived by the judge and other parties to the action.⁴²

Few would deny that the provision of advice to clients, the development of legal strategy, and the identification of causes responsible for particular effects can be undertaken in acceptable, legitimate, and even objective ways. Suppose, for example, that McCulloch had described the grand jury’s decision as a consequence of his office’s presentation of the evidence. This description would involve an acknowledgment that the grand jury’s conclusion could have been otherwise, had the evidence been presented otherwise. But the description seems more, rather than less, objective and legitimate than the description McCulloch actually gave. On this analysis, McCulloch’s mistake seems to have been less a matter of disrespect for facts than a matter of using the wrong kind of fiction. Instead of using narratives denying the presence of fiction in the stories he recounted, McCulloch could, and maybe should, have established his freedom from bias by expressing a commitment to hypothetical thinking.

The last part of this chapter suggests that a world in which McCulloch did so is in some ways not too distant from our own. Before that, however, it will explore some possible explanations for legal academics’ silence regarding cognitive fictionalizing.⁴³ This silence is curious, given the large amount of work on the topic outside law, legal scholars’ willingness otherwise to borrow from disciplines such as philosophy and economics, the key role that hypothetical and counterfactual reasoning plays in legal education and culture, legal scholars’ interest in generating additional counterfactual scenarios outside the classroom,⁴⁴ and legal academics’ extensive attention to narrative fictionalizing.