Category: Symposium (Law and the Modern Mind)


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. Read More


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.


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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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.

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Law and the Modern Mind Book Symposium



Concurring Opinions is delighted to introduce Professor Susanna  Blumenthal, and the participants in our online symposium on Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press, 2016).

In the book, Susanna explores how American jurisprudence has been shaped by differing conceptions of rationality,consciousness, agency, and accountability.  Focusing on the period dating from America’s founding through the end of the nineteenth century, the book shows how the developing conception of what she terms the “default legal person” (p. 7), modeled after cultural notions of the “free and independent man,” (id.) was both at the core of  the early Americans’ legal philosophy and simultaneously a threat to the founders’ vision of ordered liberty. Because they viewed self-government as both a psychological and political enterprise, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry.

Focusing on everyday private law adjudication, such as will contests and intrafamilial contracts, Susanna shows how judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Questions of capacity, for example, were particularly salient as lawsuits raised questions about “unnatural dispositions” (the title of one of her chapters).  She explores the connections between changing scientific views of insanity and the jurisprudence of culpability.

Law and the Modern Mind is extremely thought-provoking as it calls attention to the problematic relationship between consciousness and liability in American jurisprudence, to the difficulties reconciling medical knowledge of the mind with legal culpability.

To consider these and many other issues raised by Blumenthal’s book, we have invited an all-star – and multidisciplinary — cast of thinkers: Anne Dailey, Concurring Opinion’s own Gerard Magliocca, Michele McKinley, Nomi Stolzenberg, Martha Umphrey, and Steven Wilf.

We look forward to this discussion, and please join in with comments!  Susanna will also be responding to the commentary.