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. Read More