The Mystery of the Title
I’m delighted to have the opportunity to comment on Susanna Blumenthal’s wonderful new book, Law and the Modern Mind. This book unearths and synthesizes a treasure trove of civil lawsuits in the late 18th and 19th centuries involving capacity disputes relating to, among other things, wills, contracts, divorce, and tort liability. Susanna gives us a detailed and comprehensive portrait of these lawsuits and the lawyers, judges and jurists who shaped them. She works from the bottom up, tying a close reading of the litigation over capacity to the intellectual, political and cultural forces of the day. We learn about the ways in which civil capacity lawsuits challenged the reigning Enlightenment conception of the rational individual – the default legal person, as she puts it – and how these challenges reflected and reinforced social, political and legal anxiety over sustaining a republican form of government in an emerging capitalist economy. As she writes, “[t]hough litigation was about abnormality, the alleged maniacs unwittingly dramatized the vulnerability of the freestanding individual” (p. 14). She brings to our attention the fact that litigating sanity and competency was not simply the province of the criminal courts, and questions about capacity were not confined to those situated on the margins of social and political life. How were we to maintain a liberal republic of autonomous, rational citizens when the alienists, with their new science of the mind, were coming into court on a daily basis challenging the competency and sanity of parties to civil lawsuits? What did these challenges say about the mental stability of judges, or people generally? In what ways did judges draw the line between sanity and insanity, or between competence and incompetence, when almost everyone seemed to be suffering from some form of mental alienation? These are only some of the fascinating questions Susanna explores in this important book.
I am going to focus my brief comments here on the title of Susanna’s book, Law and the Modern Mind, and what it might say about the place of book – and Susanna’s work more generally – in the history of legal thought. As far as I could tell, neither the title, nor the phrase “the modern mind,” is expressly discussed in the book. Of course, one might be inclined to assume that “modern mind” references an Enlightenment view of the rational subject, or conversely perhaps the mind as depicted by the nineteenth century alienists who came along to dethrone Enlightenment rationality. Perhaps the title is intentionally meant to be ambiguous, straddling both sides of the debate. Yet there is clearly more to this title than the dueling sides of a nineteenth century dispute over the liberal ideal of the rational, autonomous individual.
Susanna has chosen, certainly quite deliberately, the same title of a 1930 book by Jerome Frank, a judge on the Second Circuit Court of Appeals and renowned legal realist. Frank’s Law and the Modern Mind, one of the most widely read pieces of legal realist literature, was a psychoanalytic manifesto on the irrationality of judicial decision-making. Yet although the borrowing is clearly deliberate, Susanna does not indicate why she gives her own book the title of a legal realist tome devoted to psychoanalysis, and the reason is not immediately obvious. Indeed, it is a bit of a mystery why Susanna has claimed Frank’s book for the title of her own work. It is possible that the use of the same title is simply a playful allusion. Frank himself does not appear in this book except for a short reference located at the very end of the book. In that passage, Susanna tells us: “In Law and the Modern Mind Jerome Frank added a psychoanalytic gloss [to the realist criticism of lawyers, judges and jurists], diagnosing their professional work as expressive of unconscious yearnings to ‘recapture, through a rediscovery of a father, a childish, completely controllable universe’” (p. 289). Because Frank came of age in the twentieth century, well after the period under study here, it makes sense that he does not appear in the book except for once at the end. Nevertheless, I am still left to wonder whether there is something more than playful allusion in the use of Frank’s title. Whether she consciously intended it or not, the title highlights an important but easily overlooked dimension of the book’s contribution to the history of legal thought.
The title illuminates the ways in which Susanna’s work sheds light on what came after, namely, the legal realists’ use of psychology, and in particular psychoanalysis, in their critique of legal formalism. Legal historians tend to describe Frank’s book as having fallen upon the legal academy like “an intellectual atom bomb” (Laura Kalman, Legal Realism at Yale, 1927-1960, 8 (1986)), upending traditional legal notions of rational, objective judging with psychoanalytic insights into judges’ tendency to rationalize what are nothing more than gut intuitions. Yet Susanna’s Law and the Modern Mind shows us that Frank was far from the first to launch an empirical, psychological attack on the law’s conception of the freely willing, rational, autonomous self. Rather, as presented on every page of her meticulously detailed book, these attacks had been taking place in courtrooms across the country for over a century. Among the many contributions that this book makes to the history of law and psychology, then, is to bring to our attention the connection between the work of the legal realists, such as Frank, and the ideas of the earlier lawyers, judges and jurists she so carefully unearths and describes. Her title calls attention to the fact that Jerome Frank’s work did not appear out of thin air but was foreshadowed by the capacity lawsuits that – a century before Frank and his cohort – threatened the foundations of ideas about free will and rationality in law.
Susanna’s allusion to Jerome Frank thus subtly and deftly connects nineteenth century debates over legal capacity to later psychoanalytically-informed American lawyers and judges’ efforts to engage in “deep thinking about the human condition” (p. 290). In this regard, Freud shadows this book. While his work would not make it to the American shores until well into the twentieth century, the types of mental incapacity being raised in these nineteenth century lawsuits were similar to those which Freud brought under his “scientific” gaze: hysteria, neurasthenia, monomania. After 1909, Freud’s followers in the United States – those lawyers, judges and jurists who were soon swept up in his ideas – applied psychoanalysis in a variety of legal contexts. Theodore Schroeder invoked psychoanalytic ideas in arguing for First Amendment protection for obscenity; Clarence Darrow used psychoanalysts as expert witnesses in his famous defense of the child killers Leopold and Loeb; Herbert Wechsler surrounded himself with psychoanalytically-inclined advisors in drafting the Model Penal Code; and Joseph Goldstein at Yale developed his revolutionary approach to child custody based on psychoanalytic principles. Although criminal rather than civil, Clarence Darrow’s reliance on psychoanalytic “alienists” in his defense of Leopold and Loeb in particular resonates with the nineteenth century role of experts in challenging the default legal person that Susanna describes. Like the alienists of the nineteenth century, these later psychoanalytically-informed scholars and lawyers were intent on challenging the liberal legal ideal of the autonomous, rational individual, including, perhaps most importantly, the judge.
The psychoanalytically-inclined Frank viewed Justice Holmes as his ideal judge. Susanna tells us at the end of the book: “Frank preached self-reliance as a corrective [to unconscious influences], commending the models of both James and Holmes and paying particular tribute to the latter as ‘The Completely Adult Jurist.’” And so yet another thematic thread emerges from the allusion to Frank in the title of this book. For Susanna explicitly begins the book with Holmes. Indeed, the first sentence of the book quotes Holmes for the point that “the state of a man’s consciousness always is material to his liability.” She later reports that Holmes’ wrote that “it is neither possible nor desirable to ‘think away consciousness’” (pp. 1, 17). As she indicates, it is ironic that the law’s most well-known proponent of objective standards of liability would emphasize the relevance of the individual’s subjective mental state to legal liability. I glean from the book that Susanna believes that Holmes at some point changed his mind (p. 17). Although not central to her narrative, I would have liked to hear a bit more from Susanna about this change of heart, for I believe the strained relationship between Holmes’ appreciation for the subjective depths of human experience and his support for the reasonable person standard can be found in his early work. Let me speculate a bit here drawing from my own prior thinking about the psychological premises of Holmes’ behaviorist leanings.
It is possible that Holmes’ ideas about “consciousness” and legal liability are not unrelated. Holmes’ insistence on an external standard of liability – a standard “wholly indifferent to the internal phenomena of conscience” – did not necessarily make Holmes a strict behaviorist (The Common Law 110 (1881)). His conclusion that common law liability should turn upon the consequences of objective behavior rather than subjective motivation likely appealed to him precisely because he understood that the human mind eludes easy understanding, and that intent is almost impossible to prove in court. Here again, Susanna’s work comes into play, for she shows us that many of the nineteenth century judges and jurists she studied arrived at a similar point of view: judges confronted the fact that the alienists might be right in their theories of madness and incompetency, but discerning whether an individual was sane or insane was simply beyond the adjudicatory powers of the court. These judges “readily recognized that it was impossible to ‘dive into the mind of another’ and were forced to rely, by and large, on behavioral signs” (p. 15). It is not because man is rational that nineteenth century judges remained wedded to the default legal person, or that Holmes would push for the reasonable person, but quite the opposite. Although Holmes was not always consistent in his views, Susanna’s book helps to fortify the idea that Holmes’ behaviorist legal standards were developed because of, not in spite of, his appreciation for judicial decision-making as “the unconscious result of instinctive preferences and inarticulate syllogisms” (p. 272). In working through the flow of small, everyday litigation in nineteenth century courts, Susanna helps us to understand one of America’s greatest legal thinkers. Another fascinating contribution among so many of this elegant and important work of American legal history.