Law and the Modern Mind Symposium: Some Responses from the Author


It is my great fortune to be on the receiving end of such a thought-provoking set of commentaries on my book, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard 2016). I thank the participants in this symposium along with its organizers, Naomi Kahn and June Carbone, for providing me with the occasion and space to engage with their critical engagements. In what follows, I respond to each in turn, though noting along the way points of convergence in their analyses.

With a characteristic blend of generosity and penetrating insight, Anne Dailey encapsulates the key dilemmas at the heart of Law and the Modern Mind and productively queries the relationship it bears to Jerome Frank’s iconoclastic book by the same name. Published in 1930, it does indeed fall outside the temporal focus of my study, and the same is true of the Freudian psychology that colored the way Frank thought about legal thought, and that of judges in particular. In troping on his title, my aim is not so much to identify precursors to legal realism, though my study does reinforce previous scholarship suggesting that realists exaggerated the novelty of their enterprise and caricatured their ancestors. Instead (and in no small part because of these distortions), I seek to make sense of the nineteenth-century targets of realist critiques on their own terms, chronicling their confrontations with the “modern” mind as it was rendered by successive generations of scientific and pseudo-scientific thinkers who claimed expertise with respect to the interconnections between mind, body, and behavior. Throughout the book, I use the term modern as they did, in the sense of new with respect to a given era, though I endeavor not to mistake their claims of discovery—of revealing for the first time the true principles of human nature—for discovery itself.

Anne rightly points to Holmes as a pivotal character in this storyline, and I have benefited greatly from her perceptive and path-breaking exploration of the psychological underpinnings of his jurisprudence as well as his relation to succeeding generations of American jurists and behavioral scientists, especially those of the psychoanalytic persuasion. Although beginning with Holmes’s words, my book is designed in many ways to decenter him as it reconstructs the dialogues between doctors and lawyers about consciousness and liability inside and outside the courtrooms of nineteenth-century America. But if Holmes was hardly alone in worrying through the problem of subjectivity, I share Anne’s sense that his famed formulations of the reasonable man and the external standard of liability were borne of an acute appreciation of the difficulties of knowing other minds, especially in cases where the subject allegedly suffered from “mental alienation.”

This may explain why Holmes effectively punted on the question of insanity in The Common Law and appeared to have second thoughts about objectivism in the decades straddling 1900, as I explore in Chapter 7. In this regard, it bears emphasis that he was echoing and amplifying the misgivings routinely expressed by common law judges in cases where the mind was placed in issue, daily reminding them of the fallibility of human judgment (including their own). It is thus more than a little ironic that Frank singles out Holmes as “The Completely Adult Jurist” on account of his “self-reliant” approach to his vocation, sounding not a little like the nineteenth century professors of Common Sense moral philosophy. And it is remarkable how little these two men had to say about the body of medical jurisprudence and the running commentary its contributors provided on the constitution of the reasonable person. Anne’s forthcoming book on psychoanalysis and the law promises to shed much light on the history of such interdisciplinary encounters across the twentieth century as makes the case for greater integration in our contemporary practices.

Steven Wilf provides a fascinating glimpse into Frank’s own psyche in an erudite commentary that raises all sorts of intriguing questions about the history of the concept of capacity and the relation between law and the behavioral sciences, considered in terms of the longue durée of institutional time. Starting with Show me an Angel, the unfinished novel Frank penned while commuting from New Haven to New York, where he served on the federal bench, Steven hints at possible parallels between the fictional characters’ anxieties and those of its author.

While he suggestively juxtaposes this imaginative writing to “Frank’s lengthy, sharply crafted judicial opinions,” the projected novel also invites comparison with If Men were Angels: Some Aspects of Government in Democracy, his 1942 defense of administrative agencies, in which he argues from his own professional experience heading the SEC that “the thorough awareness that there is an unavoidable personal factor in government is the best way to reduce to a minimum the bad effects of that personal factor,” ultimately concluding the best insurance against “administrative absolutism” (as his arch-nemesis Roscoe Pound hostilely put it) lies in the selection of a few good men “who are honest, well-trained, intelligent, conscientious; imbued with the love of liberty; controlled not only by the ethical attitudes of the community, but by self-discipline.” (5, 331) These unpublished writings and the self-talk they contain would seem to indicate that Frank was of at least two minds about the value of introspection, assuming the jurist shared the fictional Ann’s husband’s appreciation of Chicago as a “crude” yet welcome change of pace from the “effeminacies of the East”—“from a life of vague legal dialectics in a well-ordered, self-restrained New York.” Then again, the Second City was the place where Pound made his mark as the progenitor of sociological jurisprudence, which may add another layer to the analysis.

But these literary fragments mainly serve to introduce a set of historiographical considerations, as Steven presses me to speak to matters of periodization, with particular attention to the existing scholarship on the history of criminal responsibility into the twentieth century. And he also wonders how my reconstruction of the default legal person of the long nineteenth century might inform how we think about consciousness and liability in the present, living as we do in “the Risperdal age.” When I began this project, Foucault loomed large, though the history of the human sciences was by then a flourishing field, filled with studies questioning and/or qualifying his notion of an epistemic break at the turn of the nineteenth century. My book builds upon this body of work as it endeavors to bring the interrelations between science and religion more sharply into focus and to probe the historical dynamics between law and the disciplines. Steven zeros in on one of the main goals of my study, which was to illuminate the extent to which “medical and legal analysis of cognition were cultural constructs which depended on deeply contextualized professional norms,” often placing them at odds with one another, particularly when they were required to spell out the legal implications of their conceptions of the self in American courtrooms. Here I was particularly concerned with showing that the determinisms of the nineteenth century—social as well as biological—posed substantial problems in civil as well as criminal cases, moving many judges to recast the default legal person as they moved from one doctrinal to the next, some holding that “more mind” was needed to make a valid contract than a will and most acknowledging that the threshold of criminal capacity was set even lower. As a result, the mind was more frequently placed in issue on the civil side of the docket, especially but not only in testamentary cases where a large estate was involved. Focusing on private law adjudication, I document the curious persistence of Common Sense ways of thinking about selfhood and responsibility, even in the face of significant shifts in the theory and practice of punishment in the Progressive Era.

Because this is where my story ends and Thomas A. Green’s magisterial study of Freedom and Criminal Responsibility in American Legal Thought begins, I can only speculate about the interrelations between the law of civil and criminal capacity over the course of the twentieth century. One continuity I can identify, as I think about his book in relation to my own, is that the managers of the legal system have been remarkably adept in elaborating defense mechanisms to insulate their presumptive model of the autonomous individual from all sorts of scientific evidence to the contrary. Arguably the most effective strategy among them is the tried and true concession originally articulated by John Locke: the law’s person is nothing more or less than a “forensic fiction.”

As for the more recent past, it certainly feels like déjà vu all over again to read the newspaper coverage of the Brooke Astor case as well as the bi-coastal litigation concerning Sumner Redstone. The want of bright-line rules in criminal cases involving intellectual disabilities likewise evidences how little progress we have made in articulating a baseline of mental competency. Meanwhile, experts continue to disagree about the implications of the latest scientific technologies, which may well explain why a Texas court turned to literature instead, drawing reference to Lennie Small from John Steinbeck’s “Of Mice and Men” in deciding the case of Bobby J. Moore. It is deeply disconcerting to witness criminal defendants medicated into competence with the permission of the court, and while there are more hopeful signs in the cases involving life without parole for juveniles, the verdict drawn by nineteenth-century alienists with respect to the law of their day can still be justly applied to ours: we take “more account of property than life.”

Perhaps this is what comes of asking unanswerable questions, or so Gerard Magliocca implies in his cogent analysis of the limits of rationality as a matter of law. It is worth noting that the presumption that generally operated in civil and criminal cases was of the sanity rather than the rationality of the person whose mind was placed in issue. While the Common Sense philosophy nearly identified freedom with rationality, courts carefully distinguished irrationality from insanity, as it become ever more obvious to those who sat in judgment that “what is rational to one many is highly irrational to another.” This is not to say that judges despaired of finding objective facts in capacity contests and Gerard astutely points to the regulatory impact of these legal proceedings, effectively putting the deviant and eccentric on notice that their offensive behavior and idiosyncratic beliefs might be used in a court of law to call into question their status as free-standing individuals and divest them of their civil rights. Yet he also recognizes that the rules of law were not simply pretexts for policing behavior and puts his finger on the problem of human perversity that was at the root of so many of these trials. Although the forms this perversity took on the civil side of the docket were generally not as arresting as those presented in the common run of homicide cases, to say nothing of Hinckley and Hitler, my book shows them to be unsettling in their own way. They showed how widespread depravity and dependency were in a society that valorized the moral and material accomplishments of the self-made man and the virtue of the true woman, often registering doubts and confusions about the norms themselves. These aspects of the human condition proved especially difficult to explain within the terms of the Enlightenment philosophy that had become embedded in the American legal system by the first quarter of the nineteenth century. And the hypothesis of insanity seemed only to make matters worse, for it was a disease entity that proved frightfully difficult to bound and judges were quite understandably wary of establishing precedents that might consign too many of their countrymen to “straight waistcoats.”

What a legal historian can say with confidence is that this dilemma remains very much with us because the basic precepts of Common Sense continue in important respects to condition our expectations of ourselves and others. And it also remains true that legal and cultural contestation about capacity, whether it has to do with a cat-loving testator, a mass-murderer, a presidential assassin, or a candidate for the presidency, reveals at least as much about us as it does about the person whose mental soundness has been questioned.

With reference to the politics of the present, Nomi Stolzenberg understandably asks “Have We Lost Our Minds?” Her wide-ranging commentary branches outward from the central paradox I explore concerning the autonomous individual. In surveying its ramifications in the public and private spheres of American life, past and present, Nomi highlights the interconnections between the individual psyche and the state as they were perceived by Benjamin Rush, finding his diagnosis of “anarchia” a fitting label for libertarians of various stripes in our own times. Though conceding it is a “dubious kind of compassion” to cast those on the losing side of political struggles as fit for state guardianship, Nomi nonetheless finds something admirable in Rush’s treatment of mental pathology as a phenomenon that the government was “responsible for both causing and correcting.” It is nonetheless worth emphasizing that his republican conception of liberty was compatible with an extensive array of physical and moral constraints: he made use of such contraptions as the tranquilizer chair, and essentially equated unnatural dispositions with insanity. But one imagines he would have found it as dispiriting as we should that mental health parity remains a campaign plank in this election cycle rather than a realized goal.

Stolzenberg proceeds to consider the book’s arguments concerning the fate of the autonomous individual in other realms of nineteenth-century American life, posing an important set of questions and criticisms about the shaping effects of romanticism on the construction and reconstruction of the liberal subject over the course of this period. Focusing on the courtroom contests in the second part of the book, she notes the extent to which “old civic republican anxieties about the masculinity, rationality, and moral character of the man of commerce persisted even after the market order was embraced” and here I would add that these anxieties intensified as the forces of democratization as well as capitalist development combined to threaten traditional religious and social authorities. Placed within this historical context, one can more fully understand why these sorts of contests crowded court dockets in this period and overwhelmingly concerned the very white propertied men who were supposed to be governing themselves, their dependents, and the nation at large. Nomi sees this line of analysis in my book as complicating “the received wisdom about the division of domestic and economic spheres and the gendered relation of both.” But she characterizes my account as hewing to “the standard view” that nineteenth-century law sharply distinguished the calculating contractual relations of the market from the loving family relations of the home and points to ways in which the evidence I present cuts against this scheme of things, suggesting that the realm of the home and that of the market were not so starkly distinguished. She amplifies this point by drawing reference to contests involving sexual and religious deviance and reading them to manifest the “tension and split that emerged between rationalist and romanticist versions of liberalism” over the course of the century. More explicit consideration of “the challenge of Romanticism,” she submits, would have enabled me to more fully account for the instabilities I find in the jurisprudence of insanity.

This critique builds on the work of political theorist Nancy Rosenblum’s Another Liberalism and the legal scholarship it has inspired, including not only that of George Fletcher and Anne Dailey, but also Nomi’s own brilliant contributions (see especially “Liberalism in Love” and “Liberalism in a Romantic State”). While a full response cannot be provided here, I strongly concur with Nomi’s insistence that these two “isms”—liberalism and romanticism—were complexly related to each other and to the process of creating responsible subjects that my book chronicles. In one of my earliest forays into this historiographical terrain (“Law and the Creative Mind”), I argued for revision of the position long ago staked out by Perry Miller, who had cast “the lawyers of the young Republic” as taking the lead in mobilizing “the forces of the Head against the anarchic impulses of the American Heart.” Although I initially documented the influence of romanticism within nineteenth century legal culture by charting the changing connotations of the word genius in professional renderings of the judicial role (with biographical tributes to and autobiographical admissions of the creativity of Holmes and Frank featured prominently), the book explores their more general ways of thinking about the subject of responsibility. In stressing the formative role of the Common Sense philosophy in the education of American lawyers, I note the particular importance its expositors attached to the moral sense, which was placed at the pinnacle of their hierarchical models of the mind. Rather than privileging the head over and above the heart, we can see that these educators promoted the ideal of a balanced character, modeling an intermixing of the mind’s faculties: “the committed intellect, the pious heart, and the dedicated will.” (47) To be sure, this was a rationalist psychology, but the second chapter does examine the disaffection among romantics of various sorts, arguably including alienists, who were skewered by leading lawyers for their “psychological romanticism” in “monomanizing all the passions.” (89)  These competing perspectives were presented in especially vivid relief in capacity disputes treated in the second part of the book, where I observe that judges found it exceedingly difficult to maintain determinate boundaries between the sentimental home and the competitive market, and even more so to distinguish unusual beliefs and morbid feelings from actual insanity. In the face of these challenges, courts were moved to admit an ever-widening range of irrational and immoral behavior—including religious and sexual deviance—within their conception of the default legal person.

So it can be said that there was, indeed, a fusion of sorts between liberal and romantic conceptions of the subject of responsibility by the century’s end, though it was a decidedly unstable compound. Because the participants in these suits used other words to articulate their perspectives on their selves, however, I was wary of denoting them as such, not least because they would not have perceived these two strains of thought as distinctly as we do today. That said, I certainly take Nomi’s point: elaborating the historical dynamics between these legal and cultural modes of thought would clarify the sources and significance of the ambivalence I find running through the case law, enabling me to more fully explain why judges were at once so attracted to the reasonable man and unable to simply think away consciousness through the use of this doctrinal device. For these and the many other insights Nomi has provided by way of her commentary I am very grateful.

Michelle McKinley brings to this symposium the perspective of a Latin Americanist whose path-breaking work on early modern slavery illuminates the ways and means by which enslaved people negotiated their way toward “fractional freedoms” (the title of her book, to be released by Cambridge University Press in late September). Drawing on prodigious research in the records of colonial Peru, Michelle concentrates the difference religion makes, noting that the trials she studies proceeded in accordance with a Catholic conception of “divine design” that did not admit of the kind of autonomy post-revolutionary American lawyers that had in mind when they constructed the default legal person. While Michelle finds a similar model of personhood operating in early modern Iberoamerica and no shortage of disgruntled heirs, she concentrates on drawing out a contrast in the idioms used by the homo malcontenti (her very clever term of art) that populate her sources as compared with mine. She is careful to note that the surviving documents constituting her archive contain formulaic language and were shaped in various ways by the imperatives of imperial rule. Reading them in view of these constraints, she indicates they expressed “a universal morality” that was not as hierarchical as that of the American founders, at least insofar as “genteel European minds” do not seem to have been singled out by colonial authorities as uniquely susceptible to mental maladies like hysteria.

This leaves me curious about whether and when the mind was placed in issue in this legal culture, that is to say, the extent to which mental illness was conceived in medical terms and recognized as a basis for releasing afflicted individuals from civil or criminal liability. Moreover, I wonder about the interplay between concepts of divine and human agency in the property disputes Michelle studies, as compared with those my book examines in the aftermath of American Revolution, as orthodox doctrines of divine determinism and innate depravity were gradually displaced by more liberal forms of Protestantism, emphasizing the inherent goodness of man and the freedom of his will. Did the early modern judges who presided over these suits conceive of the determinants of civil and criminal capacity differently, perhaps in terms of status rather than sanity? And were there instances in which the mental disorders of a slave was placed at the center of contractual disputes, similar to the cases Ariela Gross unearthed in her study of law and slavery in the antebellum Deep South? Drawing this comparison out a bit more, it would be interesting to know more about the figures of speech deployed by litigants, lawyers, and judges in the freedom suits and slave litigation of colonial Lima. In what Michelle has written here there are tantalizing references to the “miraculous works” of colonial saints and “beautific bequests” of property holders that imply a distinctly different set of ideas about heaven, earth, and human kinds. The existence of such differences in belief systems and the particular moral and material ends sought by litigants renders all the more striking the common denominator she eloquently terms “the universality of disappointment and anger,” which seems to transcend space and time, though only some are so moved by these emotions to take to the courts.

Martha Umphrey’s wonderfully rich commentary enables me to circle back to Jerome Frank and the matters of titles because hers bring to mind his 1949 Courts on Trial: Myth and Reality in American Justice. Because Martha has so effectively and comprehensively captured the primary aims, arguments, sources, and methods that I pursued, advanced, mined, and deployed in my book, I can only respond to these aspects of her review with gratitude. Her critical reflections on my historical approach to trials and the concepts of performance, performativity, and cultural work call for more extended consideration.

I have long been fascinated with the theatricality of insanity trials and the extent to which they doubled as entertainment forms in nineteenth-century America, bearing a certain resemblance the commercial amusements of P.T. Barnum, who created controversies about his own exhibits, advertising that experts disagreed about their authenticity and democratically inviting “the sagacious public” to decide for themselves. As Martha notes, the trial is cast in my book as a “performance space,” though it is accompanied by the qualifier peculiar. This was meant to signify the strangeness of the legal actors’ (often quite self-consciously) dramatic moves, not least because the use of such rhetorical devices and conventions was in tension with their purported truth-value as reconstructions of past events bearing on the question of responsibility before the court. The historian who takes what is said in this context at face value thus does so at her peril, and with respect to the nineteenth century the problem is compounded by the existence of all too many unofficial accounts of these legal proceedings (in both respectable and sensationalist newspapers as well as pamphlets produced by interested parties), but no official transcript. The parenthetical “[laughter]” (101) that peppered news coverage of high-profile contests evidences not only the showmanship of courtroom players but also the active role newspapers played in shaping as well as reporting audience responses to and perceptions of these proceedings, despite the best efforts of presiding judges to keep them from degenerating into mere theater, or worse, a circus. But one suspects these judges were especially well-attuned to the elements of make-believe necessarily involved in cases where the mind was placed in issue. And so I read the surviving records of these trials (alongside the far more plentiful body of appellate opinions and treatises) as evidence of the ways law served as a cultural resource, as a means of managing if not resolving the conundrums of individuality that arose out of the circumstances of everyday life in nineteenth-century America.

So far so good, Martha might say, but she maintains that trials must be seen as more than just performance spaces, reminding us that they also “performatively constitute the law as ‘law.’” As she has elaborated the point elsewhere, in connection with her enthralling work on the notorious criminal case of Harry Kendall Thaw, trials “not only enact law, both theatrically and linguistically, in their very doing, but also performatively constitute the law they enact.” The twice-tried Thaw provides an especially illuminating illustration of the sense in which the law is “called into being in the very act of calling others to account.” (“Law in Drag: Trials and Legal Performativity,” 114, 120) Conceiving of the cultural work of trials in these terms, Martha directs attention to questions of power as well as meaning, highlighting a key conclusion of the book as she observes how far short the courts fell in their aim to produce “subjects who were generally legible as legally ‘insane.’” Despite or perhaps because of this irresolution, it is fair to say that I conclude with a “relatively sanguine” assessment of the judicial doctrines of capacity and responsibility as practical ways of dealing with the uncertainties and terrors of everyday life. Yet the overarching narrative of the book emphasizes “the double-edged nature of the law’s pragmatic turn,” (17) showing that the via media pursued by judges and jurists inclined them to treat many of the casualties of capitalism as the agents of their own undoing. Indeed, their doctrinal reasoning helped to sustain a false sense of independence, not least because the law’s ever more expansive conception of the autonomous individual only seemed to keep state power at bay. While the formal rules of law provided that its subjects would be taken to be competent until proven otherwise, an Americanized law of persons perpetuated inequalities based on race and gender to the century’s end. In the final analysis, we can see that the law’s presumption of sanity covered a multitude of sins.

In an important respect, the story my book tells is of a world we have lost, Martha observes by way of conclusion, as the one we now inhabit has been “largely emptied of trials, both civil and criminal.” Here I must confess greater ambivalence as I contemplate the normative implications of this development, perhaps because too many of the civil suits I studied were especially ugly chapters in long-standing family feuds, often leaving me wishing they had been channeled into an alternate form of dispute resolution, even though the surviving transcripts are invaluable to me as a legal historian. And though the pervasiveness of plea-bargaining in the criminal justice system of the present is deeply problematic, the same might be said of the way the trial has historically functioned in relation to the sentencing phase of criminal proceedings, authorizing if not requiring the determination of matters of guilt without consideration of socio-economic constraints on human behavior, the effects of which are compounded by equities in the provision of legal services for indigent defendants. Of course none of this is denied by Martha, whose own scholarship on the history of responsibility has brought many of these infirmities to light, rendering her insistence upon the trial’s importance within our democratic order all the more compelling. But while I share her concerns about the erasure of the docket and find her vision of the trial as “an instrument of democratic governance” deeply attractive, in the spirit of this symposium I would also commend Judge Frank’s Courts on Trial, which was something of a sequel to Law and the Modern Mind, arguing for the abolition of the jury trial in all but the most serious criminal cases. Though filled with contradictions and risible notions of the jury-as-mother-replacement, what the book has to say about “fact uncertainty” and “court-house government” is worth taking seriously, both for what it can and cannot tell us about law and the modern mind.


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