A Theory of Deception and then of Common Law Categories

I. Introduction Deception is a regular feature of matters that give rise to legal conflict, and yet we do not think of cases with deception or fraud as a common element as doctrinally related. I will suggest here that they can, in fact, usefully be thought of as a group. From that observation there follows the more abstract question of why judges have not thought of these cases as related. The common denominator of "deception" has not often motivated them to decide cases in ways that take into account decisions rendered in other deception cases. My aim here is to explain this sort of narrow judicial focus, or brand of "minimalism" as I will sometimes call it, and to argue that the reason for this selective minimalism is an important and unrecognized part of the common law process. Deception is hardly the only window to this observation about the common law process, but it is one such opening and, in any event, the one inspected here. Inasmuch as my larger goal is this exploration of common law decisionmaking, I avoid areas of law where legislative enactments dominate the landscape. Some of the well-known deception cases, outside of statutory frameworks, include deception by police who bring criminals to a location where they can be arrested (courts normally find this police tactic acceptable)1 or by police who physically or psychologically coerce a suspect in order to encourage a confession (courts do not approve);2 deception by investigative reporters who pose as employees in a supermarket's meat department (held to be unacceptable trespass, though courts have been wary of imposing too great a deterrent to such undercover work through damage awards)3 or as patients at eye clinics (that was found acceptable and is the weekly fare of popular television programs such as 60 Minutes and PrimeTime Live)4 or in the living room of a quack who claims to heal through strange means (but that invasion was regarded as wrongful).5 There is deception by one who gains a sexual partner by hiding the fact that he is infected with a sexually transmitted disease (that is battery)6 and by one who uses a counterfeit $100 bill to buy sex (but that is not battery).7 In employment law, deception by an employer who encourages early retirements by announcing layoffs that are in fact unintended is permissible,8 while even small deceptions on resumes empower employers to fire employees for cause.9 And then, quite recently, there is deception, or "pretexting," in the process of a public corporation seeking to discover the source of leaks from its board of director meetings.10 These ten quick examples begin to suggest the range of deception cases, and they are intended to encourage the conclusion already summarized: that "deception" can easily be regarded as an area of law, and one that can be reduced and mastered, even though the examples just offered produced evenly mixed results. Some readers might be pleased to see this demonstrated, as one is pleased to connect the dots in a coloring book or to clear an area of jungle. But some would be unsettled by a theory that is so predictive in style with no accompanying explanation as to how such judicial decisions come about, especially when judges do not explicitly describe the deception cases as related. In addition to this familiar objection to a theory attempting to explain (or rationalize) a set of cases, there is the deeper problem of circularity. Cases with the common element of deception might be unified, or revealed, with a single key, but the skeptic might say: "This is too circular. You have, in effect, connected a set of cases and thus made more manageable, or even more attractive, a portion of the jungle of judicial decisions. But when you clear an area of jungle and plant flowers, your claim that it was and is a flower bed is arbitrary because there is nothing natural about the boundaries of this plot. The flower bed's boundaries may come to seem natural, but we will know that they were drawn either in an arbitrary fashion or to serve some other human purpose. …