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FAN 121 (First Amendment News) New York law to combat Citizens United is “constitutionally unsound” says NYCLU

The headline on the official website of New York State reads: “Governor Cuomo Signs First-in-the-Nation Legislation to Combat Citizens United.” The news story begins by noting:  “Governor Andrew M. Cuomo today signed first-in-the-nation legislation (S.8160/A.10742) to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The legislation also takes significant steps to strengthen disclosure requirements for political consultants and lobbyists who provide services to sitting elected officials or candidates for elected office by requiring them to register with the state and reveal their clients.”

Unknown“This new legislation,” the news release continues, “will work to restore the people’s faith in government by instituting the strongest anti-coordination law in the country and explicitly prohibiting coordination in New York State election law for the first time. The legislation expressly identifies which activities constitute prohibited coordination, and strictly prohibits coordination in egregious scenarios, such as the ‘independent’ spender being an immediate family member of the candidate, as well as in subtle scenarios, such as the dissemination of a candidate’s campaign material by supposedly ‘independent” groups.'”

“Additionally, the legislation increases penalties for lobbying violations, while providing enhanced due process for individuals under investigation for potential violations.”

NYCLU Opposes Law

Robert A. Perry, the Legislative Director of the New York Civil Liberties Union, took issue with the law shortly before Governor Andrew Cuomo signed the legislation. “The bill,” he stressed, “is not only constitutionally unsound; it would promote public policies that are inimical to the mission of not-for-profit organizations that operate in the public interest.”

nyclu-logoThe legislation, he added, “includes several provisions that would regulate activity that is unrelated to electoral campaigns — including lobbying, as well as communications outside the definition of lobbying that addresses matters of public concern. Nevertheless, if enacted in law, the proposed legislation would direct government officials to regulate, and circumscribe, New Yorkers’ rights of speech and association.” Mr. Perry summarized his the NYCLU’s opposition to the measure this way:

  1. “[G]overnment regulation of lobbying and the imposition of disclosure requirements are consistent with the First Amendment only if they are limited to ‘direct communication’ with elected officials to influence legislation.”
  2. “[T]he legislation as well ast the state’s lobbying law and rules require the disclosure of information on contributors to organizations that engage in lobbying, even if the contributed funds are never utilized for that purpose.”
  3. [T]he mandated disclosure of personal information about contributors will undoubtedly have a ‘chilling effect’ on the exercise of protected speech and petition activities,” and
  4. [T]he First Amendment requires that the proposed regulations provide for exemptions for controversial organizations upon a showing of a ‘reasonable’ likelihood of harm from the disclosures.”

For those reasons and others, “the NYCLU objects to the legislation.”

[NB: The proposed measure was not amended after the NYCLU filed its letter of opposition to Governor Cuomo.]

See generally: National ACLU amicus brief (July 29, 2009) in support of Appellant in Citizens United.

Liberal Groups “Strongly” Oppose Legislation

Opposition to the New York law was also expressed by the following groups:

In an August 22, 2016 letter to Governor Cuomo, the groups stated:

“This poorly constructed bill will seriously harm some of New York’s most prestigious institutions, and infringe upon the rights of many public-minded New Yorkers to engage in their constitutionally protected right to comment and criticize. As a result, rather than advancing the public good, the legislation ends up as a secretly developed, clumsily drafted piece of legislation that in the end does little to advance meaningful reform other than dealing directly with problems caused by Citizens United. In fact, the legislation causes more problems than it solves by trying to solve a problem that wasn’t defined publicly and doesn’t really exist. We strongly urge you to veto” the measure.

* * *  *

See also David Keating, New York vs. the First Amendment: New ‘campaign finance’ legislation is an assault on political speech rights, New York Daily News, June 30, 2016 (“The legislation creates expansive new definitions of what constitutes illegal coordination between independent groups and candidates, and forces unprecedented reporting to the state by advocacy groups like the American Civil Liberties Union and the National Rifle Association.”)

Citizens United Group Loses Charitable Solicitation Suit  Read More

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11 Reasons Not To Enforce Your Trade Secret

Colonel_Sanders_Rapstar-1I’m strangely fascinated by the recent “revelation” about Colonel Sanders’ secret recipe for Kentucky Fried Chicken. His nephew showed a journalist a handwritten list that was left behind by Sanders’ second wife that listed 11 herbs and spices in specific proportions.  Yum Brands, which owns KFC, denies that this is the secret recipe.

This situation exposes a basic problem in trade secret law, which is that the available remedies are often pretty inadequate. Suppose this is the secret recipe.  Suing Sanders’ nephew will not get you much in damages–he’s not wealthy.  You can’t get an injunction–the information is out.  Maybe the only thing you can do is pretend that this is not the real recipe and not bring an enforcement action at all. (Granted, you can say that the real value of KFC is in its brand rather than its secret recipe, so a revelation like this actually causes little or no harm, but I’m not sure Yum thinks so.)

More broadly, trade secret law suffers from the problem that the owner of the information really needs an ex ante remedy akin to a prior restraint.  Once the secret information is out, there’s not much that can be done. Acting before that happens, though, is often impossible or requires keen anticipation skills. Perhaps this is why, as a practical matter, confidential information is protected more effectively through physical security measures, extra compensation, etc.

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Call for Papers: The Feminist Legal Theory Collaborative Research Network

Call for Papers – Friday September 16th Deadline

The Feminist Legal Theory Collaborative Research Network

Seeks submissions for the

Law and Society Association Annual Meeting

Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017

Dear friends and colleagues,

We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.

This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.

As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.

The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.

The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.

If you would like to present a paper as part of a CRN panel, please email:

  • An 1000 word abstract or summary,
  • Your name and a title, and
  • A list of your areas of interest and expertise within feminist legal theory

to the CRN Planning Committee at 2017lsacrn@gmail.com. (Please do not send submissions to individual committee members.)

Note that LSA is imposing a requirement that your summary be at least 1,000 words long.  Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.

In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.

2017 LSA Feminist Legal Theory CRN Planning Committee

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The Mind on Trial

Susanna Blumenthal’s impressive Law and the Modern Mind:  Consciousness and Responsibility in American Legal Culture, offers an important reconceptualization of the legal history of responsibility as it played out in nineteenth century courtrooms and jurisprudence.  Her extensively researched book examines the ways in which philosophers, medical experts, and judges took up a set of foundational problems in American legal and political theory:  What is the self?  What does self-governance in a roiling new capitalist democracy look like, and what does its failure entail?  What is the relation between freedom and unfreedom for different categories of persons in varying contexts?  How should we assess the entanglement of collective morality, a desire for order, interrelation and responsibility, and material embodiment in order to judge the acts of individuals?  While other scholars have explored this terrain through the lens of criminal jurisprudence, Blumenthal turns to the civil side of the docket, and the intellectual artifacts and arguments she unearths make this book a singular and significant contribution to the literature on legal responsibility.

A talented historian, Blumenthal ranges across a fresh archive of philosophical tracts, personal correspondence, legal treatises and articles, trial transcripts, and the popular press, producing a synthetic history of the debates raging around the problem of civil legal responsibility across the nineteenth century.  In doing so, she implicitly refines and revises the Foucauldian story of the rise of biopolitics in constituting modern subjectivity, offering a genealogy of the responsible self – in her terms, the “default legal subject” – and its fraying from eighteenth-century Common Sense philosophy to the twentieth-century edges of psychoanalysis.  While Foucault counterpoises the liberal self-governing subject enshrined in rights theory with a biopolitical subject constituted through scientific discourse and the capillary effects of disciplinary technologies,  Blumenthal suggests that legal and medical commentators saw the very conditions of freedom (both market and political) as themselves generating the unfreedoms of madness. Too much freedom, such commentators worried, unmoored particularly those white men who were ideologically enjoined to pursue individual wealth and happiness.  Increasingly, experts believed, such men suffered from a bewildering variety of psychological ills in need of categorization, explanation, and treatment.  Under those fraught ideological, economic, and cultural conditions it was the task of judges to negotiate the seemingly indeterminate and endlessly moving line between madness and responsibility, determinism and free will.

Blumenthal’s perspectival shift from criminal to civil law, an in particular her mining of illustrative trials, enables us to see more clearly the scope, stakes, and uncertainties at the heart of these debates.   In examining fascinating legal contests over wills, contracts, familial duties, and accidents, she shifts our attention away from classic one-off case histories of madness and violence and toward the rich social landscape of modernizing America captured in the annals of private law.  Drawing on trial and appellate records, Blumenthal gains a fine-grained perspective on the ways judges and juries struggled to reconcile conflicting conceptions of the self as they were presented for adjudication in cases arising out of perplexing, often intimate situations.  Those cases inflamed public opinion for and against medico-legal experts, and informed treatise writers who struggled and failed to find a steady gauge by which one could measure the presence and intensity of insanity and its relation to civil liability.

In emphasizing trials as a primary source in her legal history of responsibility, Blumenthal helpfully moves beyond the domain of intellectual history and into the world of practice and representation.  As a historiographic matter, then, it may be worth exploring briefly the status of trials as evidentiary artifacts and how she takes them up.  Because they tend to open up private worlds to public view and create written records (via transcripts and appellate opinions), trials are generally accessible sources for historians, who can sometimes unreflectively imagine them to be transparent windows into the social life of a given time and place.  Blumenthal, on the other hand, approaches these civil trials with a sophisticated eye, conceiving them as a kind of “performance space where so much was scripted for strategic purposes” (101), full of lawyerly hyperbole.  But what does it mean to label a trial a “performance?”  How do trials, as she puts it, do “cultural work”?  And to what extent can historians capture their meanings post-hoc?

Fundamentally, trials are live events that reconstruct the past through carefully crafted argument and the constrained but vivid presentation of case-specific evidence before an audience.  Advocates play roles, tell stories, and appeal to both reason and emotion in order to persuade audiences that their rendering of the past is more accurate, their arguments more compelling, and their desired outcomes more just.  Shifting allegiances produced by the adversarial format, compelling evidence, authoritative rulings from the bench, the rhetorical force of argument – all produce an immediate and visceral affective context for judgment.  For historians, this aspect of trials is nearly impossible to reconstruct without evidence of audience response, complicating the project of making meaning out of particular verdicts.

At the same time, courtroom performances are structured by already-given rules and role expectations, suffused with powerful (if contested) legal concepts (such as “insanity”) and their discursive frameworks reiterated in trials across time and space, and structured (at least in the Anglo-American trial system) by a rigid adversarial format.  Hence trials as performances also exhibit a kind of performative iterability (in the linguist J.L. Austin’s terms, “performativity”) in which “law” and the legal subjects who come before it are fabricated and staged through (as Judith Butler puts it in Gender Trouble) “a reenactment and reexperiencing of a set of meanings already socially established” in prior trials.  Reiteration gives the trial, and the doctrines at issue in it, recognizable form.  As such, individual trials are not just performance spaces; they also performatively constitute the law as “law,” shaped by ritual and procedure, and referential (if never fully binding) beyond the confines of a particular trial.

This tension between fleeting singularity and stylized repetition makes trials a thick but complicated form of evidence from which to draw conclusions about the social world.  Carefully, instead Blumenthal conceives of trials instead as “a rich repository of information about how the legal system was used to manage the epistemological and ontological problems these cases regularly presented” (101).  In my own jargon, she traces the ways these cases performatively constituted – or ultimately failed to constitute –subjects who were generally legible as legally “insane.”  Ultimately, Blumenthal argues, “in the crucible of the courtroom, Americans attempted to forge a common sense of the subject of responsibility … Yet consensus proved maddeningly elusive, for the situations presented were so varied, the cause and meanings of capacity so context-specific, that these cases could not be systematized into a ‘law of insanity’ in any meaningful sense” (274-5).  No consistent conceptualization of irresponsibility emerged across the century’s civil docket.

For those interested in the normative dimensions of legal doctrine, Blumenthal’s historical narrative may seem to end in tragedy, or perhaps farce.  After the work of a century’s great intellectuals deeply invested in explorations of the self, from Benjamin Rush to Oliver Wendell Holmes, Jr., these cases pointed to the ultimate irresolvability of a fundamental legal question:  who deserves to be held liable for damage done?  And with that irresolution the legal system risked allowing profound injustice to proliferate for civil litigants who experienced all sorts of losses – material, emotional, and psychological.  Blumenthal’s engagements, however, lie somewhat to the side of these normative questions.  If her synthetic history largely eschews presenting vivid (and entertaining) cultural details concerning religion, delusion, and madness found in, for example, Charles Rosenberg’s case study, The Trial of the Assassin Guiteau, it nevertheless explores the vast and varied landscape of nineteenth-century civil trials with great insight, giving us a model study of the contradictions and complexities of adjudicating the dense and murky netherworld of the self.

Blumenthal offers a relatively sanguine set of conclusions about the worth of the nineteenth century’s trial as a forum for adjudicating questions of responsibility.  In negotiating the unnerving possibility that law can never fully capture the liberal self on which its conceptions of right and justice depend, Blumenthal argues, these judges nevertheless gave their audiences “a practical way of living with the uncertainty and terrors of everyday existence, particularly the threats that lurked within the mind” (290).  By and large, her book chronicles cases in which judges maintained a pragmatic distance from medical experts’ contradictory conclusions about what constitutes insanity.  Out of those trials, judges developed a distinctive logic of responsibility that managed, case by case, to thread the needle between law’s deep investment in the default legal subject and proliferating evidence of biologically and environmentally determined causes for mental illness.  Blumenthal’s conclusions thus suggest, for me, a different kind of tragic narrative.   We now live in a world largely emptied of trials, both civil and criminal. Plea bargaining and mediation have erased the docket.  Through what legitimate public vehicles, then, can we possibly work through these still-vexing questions of responsibility?   In an age of material extravagance and corresponding environmental deprivation, neuroimaging and drug therapies, how can we determine whom we should hold liable for damage done?  Without the cultural work of trials, whatever their flaws and eccentricities, we have lost a critical apparatus for generating public judgment.  And with that loss, we may have let go of a key site of law’s legitimation as an instrument of democratic governance.

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Vergara and the Future of Liberal Constitutionalism

The other day the California Supreme Court decided not to grant review in Vergara v. California, which raised the issue of whether state law regarding teaching tenure violates the equal protection rights of students (basically, by irrationally allowing bad teachers to stay employed). The Court was divided 4-3, with Justices Goodwin Liu and Mariano-Florentino Cuellar dissenting and urging that the case be heard.  [Disclosure: Justice Liu was my law school classmate.]

I think that the dissenting position in this case represents the future of liberal constitutional thought, keeping in mind that there was no decision on the merits in Vergara. What I mean is that liberals in the academy and on the courts are probably going to start taking more seriously the idea that the Constitution confers positive rights or requires a more compelling state justification for policies that lead to unequal outcomes in the distribution of those benefits by legislation. When I say the future, I mean a decade from now. Merrick Garland and Steven Breyer are the archetypal legal process liberals who will not be terribly interested in such claims, but the next generation will probably have greater faith in the judicial capacity to address these problems.

Whether this is a good idea is another matter.  We’ll cross the bridge when it comes.

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FAN 120 (First Amendment News) Snapshots of David Cole #2: Chipping Away at Citizens United

If Citizens United is overturned, it will be because of the sustained efforts of critics in civil society to critique it, educate the public about why it’s wrong, and show through local initiatives that alternative reforms are possibleDavid Cole, August 22, 2016

This is the second post concerning  David Cole, the ACLU’s New National Legal Director (first post here).  In this post the focus is on Professor Cole’s views on the First Amendment and campaign finance laws, with a particular focus on Citizens United v. Federal Election Commission (2010).

This past April Professor Cole published an article in The Atlantic entitled “How to Reverse Citizens United.” Here are a few excerpts from that article (subheadings were added):

Change in the Court: New Opportunities & Challenges 

Professor David Cole

Professor David Cole

“Now, with a new Justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.”

“But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.”

Incremental Steps: The Slow March to Victory

“If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbook.”

Start with the States

“Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones.”

The Role of Scholarship

“Scholarship could similarly lay the groundwork for a new approach to campaign finance. One promising critique of the Court’s recent rulings concedes that spending restrictions limit First Amendment rights, but maintains that the constitutional interest in protecting speech is outweighed by other compelling considerations. Although the Court’s most recent rulings assert that the only legitimate basis for restricting campaign spending is curtailing bribery—what the Court calls ‘quid pro quo corruption’—a number of scholars are persuasively pressing a broader understanding of the state’s interests. For example, Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Robert Post, the dean of Yale’s law school, argues that ensuring ‘electoral integrity’ is essential to a functioning democracy, and justifies limits on the free flow of campaign cash. And in an important new book, Plutocrats United, Richard Hasen, a law professor at UC Irvine, maintains that the state’s interest in equality can justify rules aimed at countering money’s distortion of politics. Each of these arguments could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending.”

Related Articles by David Cole

  1.  The Supreme Court’s Billion-Dollar Mistake, New York Review of Books, January 19, 2015
  2. How Corrupt Are Our Politics?, New York Review of Books, September 25, 2014
  3. The Roberts Court vs. Free Speech, New York Review of Books, August 19, 2010

See also Jameel Jaffer, How Constitutional Change Happens: Q&A With David Cole, ACLU, April 4, 2016:

Cole: “My own sense is that incrementalism is pretty much all there is. The NRA, the gay rights groups, and the human rights groups all succeeded in significant part by acting incrementally. Campaign finance reform today is similarly proceeding incrementally, introducing clean election and public financing and disclosure reforms in the most receptive states first, and then seeking to spread those wins to other states. A full-frontal attack on Citizens United is unlikely to prevail, but attacking it around the edges shows more promise.”

 See generally, Jeffery Rosen Interview with David Cole: How Citizen Activists Can Make Constitutional Law, National Constitutional Center, April 18, 2016 (on YouTube) (discussion focuses on activist and litigation strategies)

Proposed Federal Law Would Ban Revenge Porn Read More

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Law and the Modern Mind – Frankly

Jerome Frank, New Deal chairman of the Securities and Exchange Commission, renowned Yale Law School scholar, and a judge on the Federal Court of Appeals for the Second Circuit, wrote a study of how unruly psychological forces were at play in law.  Law and the Modern Mind (1930) countered claims that law routinely operated in the sphere of rational rules and external behavior.  According to Frank, consciousness—both the judge’s and those standing before the court in cases—intrudes upon our sense that shared, often unexamined behavioral norms might be unfailingly applied through the mechanism of legal justice.

I have returned to Frank and his work because Susanna Blumenthal’s superb study of contested mental capacity in the long nineteenth-century, Law and the Modern Mind: Consciousness and Responsibility in American Culture, readily borrows Frank’s title.  For Frank, the unrestrained—a potent mixture of emotions and cognition—always lurks just around the bend.  Yale University’s manuscript collection contains an unfinished novel by Frank that even more than Law and the Modern Mind reflects his commitment to the subconscious.  The phrase “scribbled on train” serves as the author’s headnote—which suggests that he began the draft when commuting between New Haven and his position on the federal appellate bench in Manhattan.  The notes for Show me an Angel, as Frank titled the novel, might be described as a maddening, Cortzar hopscotch between characters and plot lines.  It is almost impossible to follow where the novel is heading   Nevertheless, it is intriguing to juxtapose the ordered realm of Frank’s lengthy, sharply crafted judicial opinions with this submerged fictional and psychoanalytic imaginary drafted on the New Haven line.

Show me an Angel tells the story of a ménage a trois.  At the center of this complicated threesome—a married couple and another man–is Ann whose “double existence” fuels desire.  But the real theme is not the emotional tug of different parts of the relationship.  Instead, it is the tension between a fraught internal world and an outwardly directed world of action.  Chicago represents the unexamined life.  In language reminiscent of Carl Sandburg’s poems, Frank begins: “Chicago! Crude, rudimental, sprawling, dirty.  It turned its back contemptuously on what it deemed the effeminacies of the East.”  He evokes an epic invocation reminiscent of the Aeneid’s opening lines in the city’s virile call to labor:  “Its miles of uneven wooden sidewalks, its acres of vacant lots . . . the great railroad that waded an entrance into the city on stilts built In the very waters of Lake Michigan—this rawness, this truculence . . . . . “   ”Chicago is an undignified city, a bustling city, a new city.  Here men engaged in money-making, not as a routine task but as a buoyant adventure, audaciously, impudently.”

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Will, Agency, and the Modern Mind

Susanna Blumenthal’s tour de force Law and the Modern Mind takes readers into the murkiness of the life of the mind and the troubled notion of legal responsibility in situations where men (mostly men) were expected to be rational, orderly, and provident (though not necessarily benevolent) patriarchs. While generations of law students like myself made sense of the development of American private law through the raw profit-driven lens of legal realism and critical legal studies, Law and the Modern Mind skillfully weaves the skeins of the moral and the material, the burdens of autonomy, choice and agency that threatened private ordering in the new republic. A young republic founded on freedom, but not too much freedom—and autonomy for the right sorts of people—not slaves, women, indigenous people—rather those who were capable of bearing the burdens of choice and responsibility. Not those fragile genteel souls doomed to hysteria and hypochondria (p.65) but sturdy pragmatic capitalists freed from eccentricity and perversity. Perhaps unsurprisingly, this path of probity and temperance was too much to bear for many patriarchs. The contestants reveal capitalism’s shaky reach into the domestic sphere, when people turned to the courts to realign imbalanced affairs of the heart/wallet, and mind.

I read the book as a Latin Americanist, steeped in early modern Catholic idioms of divine design (and hence the abjuration of such post-Reformation questions of will and agency). Indeed, any judicial deliberation of the kind Susanna puts forth here would put testators and legislators on the expedited track to the Holy Tribunal—which would result in a confiscation of property– so this was a sub-par option. This is not to say that wills went uncontested in the civilian tradition (spoiler alert: they did not). Rather, disgruntled heirs in both civilian and common law jurisdictions framed their quarrels in distinct ways. Nonetheless, the default legal subject appeared as a template in both sides of the Americas. Indeed, some of the characters in Law and the Modern Mind appeared very familiar to me—intemperate, dissolute, stingy, and profligate. Let us call the aggrieved heirs homo malcontenti. If in the spirit of universalism, we find similar judicial efforts at pragmatism across the Americas, let me call attention to the ways in which those involved used different idioms given their religious and moral constraints.

Susanna deftly weaves together the political and material histories of a new republic, the reliance on Scottish Common Sense/pragmatism, and a preference for case-by-case adjudication guided by the actions of the rational/ [reasonable man] default legal subject. In a beautiful phrase, Susanna reminds us that, “judges were far from certain that most testators enjoyed anything like perfect mental health.” (p.164). They knew their subjects suffered from monomania or other afflictions that clouded their judgment. Other judges despaired of finding rationality in their “perverse” subjects (p.109). Alienists cloaked their theories of insanity in scientific shrouds with both dubious and impeccable academic credentials (Benjamin Rush seems to be on the impeccable side of the equation, while Isaac Ray less so).

 

In early modern Iberoamerica, judges were also grappling with the material and the moral although they deployed a universal morality. Catholics solemnly testated in the name of the Holy Trinity as they made contracts—the language and intonations were virtually the same. Missionaries circulated boilerplate language for indigenous peoples urging them to prepare for a sanctified death in terms of a contract. This neatly coincided with pre-existing indigenous rites ushering people from one world to the next. While many historians have studied the harmonization of will and contract as a result of evangelization, I have always questioned how this drive for harmonization affected medical understandings of the mind/body, soul, and spirit. In my reading of cases that unfolded at the time of imperial consolidation, there is no evidence that Spanish medical practitioners distinguished between the African/indigenous body and the European. In other words, we do not see claims that only genteel European minds were prone to hysteria: “Man in his primitive state is rarely ever insane. The Caucasian is about the only variety that can lay claim to this malady, and even in that variety, it is very little prevalent in despotic governments. It is in those that are free, in which mind can come freely into conflict with mind in which every chord of this curiously toned instrument is constantly strung, that every possible variety of mental derangement is of the most frequent occurrence” (p. 143, my emphasis). Did the Iberian insistence on similarity derive from divine design? What then did this mean for slaves or other legal dependents? Were they judged a priori irrational or weak and incapable of self-governance and freedom like women?
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Have We Lost Our Minds?

As the publication of the new Law and the Modern Mind attests, after a prolonged absence from the world of legal scholarship, the mind is back! And not a moment a too soon. In a political season in which it is a serious question whether one of our leading presidential candidates suffers from a serious personality disorder, and the news regularly induces the feeling of the whole world gone mad, work drawing out the connections between mental health and illness and political and legal regimes could not be more timely. And that is just what Susannah Blumenthal’s book provides. In her study of the changing understandings of human psychology that influenced virtually every branch of law as it developed in the 18th and 19th centuries, Susannah illuminates the paradoxical dependency of the autonomous rights-bearing individual on complying with certain (albeit shifting) behavioral norms, the violation of which could justify a judgment of mental incapacity and a forfeiture of the rights and status of the autonomous individual. A blend of intellectual history with detailed case studies, Susannah’s impressive new volume is far too multifaceted to address comprehensively here. Instead I want to identify four themes that came to the fore of my mind as I worked my way through this masterful study, namely, (1) the connection between the psyche of the individual and the psyche of the nation, (2) the distinction drawn between the realm of marriage and the realm of the market, (3) the influence on the law of capacity of both sex and religion, (4) romanticism and its place in the law of the modern mind.

The Psyche of the Individual and the State of the Union

The first theme that emerges from Susanna’s book is perhaps the one most relevant to the present moment. Chapter One commences with a description of the Revolutionary Era “physician-statesman” Benjamin Rush, whose Account of the Influence of the Military and Political Events of the American Revolution upon the Human Body, “which documented the novel mental diseases contracted by those who lived through this violent upheaval” (20), was written at the same time as the Constitution. As Susannah shows, the concern that the new political conditions created by the American Revolution would produce mental illness was pervasive. The widespread fear that “too much freedom” would lead to a loss of reason (and, quite simply, drive people insane) was matched in the years immediately after the Revolution by a concern for the mental wellbeing of those who were on the losing side of the War of Independence. Their condition was diagnosed by Rush as a peculiar form of melancholia on which he bestowed the term, “Revolutiona,” to signal that it was “brought on by the loss of power, status, property, and friends, and the accompanying neglect, insults and oppression” inflicted upon them by the victors. (Compare this characterization of losers in a political battle to the characterization of people who suffer a political defeat favored by today’s religious conservatives, who view themselves as victims of discrimination, entitling them to special rights and exemptions from the laws they unsuccessfully opposed). Rush’s view of the people who suffered defeat in the American Revolution as victims of a form of mental illness may have conveyed a dubious kind of compassion for them but it by no means suggested they were entitled to be protected from the change of regime which caused their suffering. Rather, Rush, like many of his contemporaries, viewed mental ailments like melancholia as conditions that undermined people’s capacity to exercise rights and justified subjecting them to the tutelage of guardians appointed by the state.
Rush was equally, if not more, concerned about the mental wellbeing of the victors, whose “passion for liberty” he thought “unhinged the judgment, deposed the moral faculty, and filled the imagination … with airy and impracticable schemes of wealth and grandeur”—a mental condition that he called, evocatively, “Anarchia.” Here, too, the resonance with our contemporary political situation is striking. What better term for the paranoia of the legions of Americans who firmly believe that “they’re coming for our guns,” not to mention the widespread conviction that (religious) conscientious objectors have an absolute right not to follow laws to which they object and the general repudiation of government and public obligations in the name of the most extreme forms of libertarianism? Susannah’s description of the understanding in days of yore that these sorts of ideas are symptoms of a mental pathology that the government is responsible for both causing and correcting, coupled with the further recognition that the mental state of the individual and the condition of society are interdependent, are welcome correctives to the widespread rejection of state responsibility for shaping citizens’ minds characteristic of both conservative and progressive thought today.

Marriage and Markets

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