ABSTRACT
This chapter tells a cautionary methodological tale about interstitial theorizing using the example of ‘deception’. Interstitial concepts in private law serve different functions; one is to create domains that cut across the traditional silos of private law, like tort, property, and contract. Once entered into, these domains allow jurists and legal scholars to create consistency across the domain. ‘Deception’ has as strong a claim as any to serving this function, and scholars have begun theorizing the so-called ‘law of deception’. But focusing on the wrong concept as creating such a domain can distort our understanding of what certain parts of the law are really about, unnecessarily limiting the path of the law. This chapter illustrates this danger. Part I provides a philosophical analysis of the pre-legal concept of ‘deception’. Part II uses that analysis to question whether the tort of deceit – the leading example of the so-called law of deception – is really about deception at all.
Cox, Courtney M, This is a Chapter About Deception (January 24, 2024), forthcoming in Samuel L Bray, John CP Goldberg, Paul B Miller and Henry E Smith, eds, Interstitial Private Law (OUP); Fordham Law Legal Studies Research Paper No 4705457.
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