FAN 122 (First Amendment News) Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)

There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –Justice Samuel Alito for the Court in Pleasant Grove City v. Summum  (2009)

Unknown-1It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:

Suppose that a State erected elec- tronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individu- als to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?

What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

UnknownAgainst that backdrop comes the cert. petition in Mech v. School Board of Palm Beach CountyThe issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.

The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”

Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:

  1. “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and 
  2. “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.

Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:

  1. “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
  2. “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”

Shawntoyia Bernard, representing the School Board, counters:

  1. “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker
  2.  “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
  3. “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”

 One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?

The case was distributed for Conference of September 26, 2016.

CJ Roberts  temporarily blocks subpoena over sex ads Read More


Introducing Guest Blogger — June Carbone

  It is my pleasure to introduce Professor June Carbone, who will be blogging with us this month.  June joined the University of Minnesota Law School faculty in June 2013 as the inaugural holder of the Robina Chair in Law, Science and Technology. Before her current position at Minnesota, she was the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the University of Missouri at Kansas City (UMKC).  And prior to that, she  was  a professor at Santa Clara University (SCU) School of Law, where  she served as associate dean for faculty development from 2000-2006 and from 2001-03 as the Presidential Professor of Ethics and the Common Good. She is an expert in numerous areas of the law, ranging from family law to property to bioethics, and she also has taught contracts, remedies, financial institutions, civil procedure, and feminist jurisprudence.

In addition to countless law review articles, June is the co-author of a leading family law casebook, the author of the ground-breaking From Partners to Parents,  and, with yours truly, the co-author of Red Families v. Blue Families and Marriage Markets. Brian Leiter recently listed her as the 6th most frequently cited family law scholar from 2010-2014.


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 Journal of the Joint Committee on Reconstruction

I wanted to post about the bizarre tale of the Journal of the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment.

Unlike the Constitutional Convention, where James Madison kept an extensive record of the proceedings (supplemented by an official journal and some notes from other delegates), the only record of what occurred in the Joint Committee was created by George Mark, a clerk from Maine who probably received that assignment by Senator William Pitt Fessenden, a senior member of the Committee from Maine. Not much is known about Mark other than the fact that he later worked at the Library of Congress.

After the Joint Committee disbanded, Mark’s journal was retained by Senator Fessenden, then by his son, and then by his grandson. Around 1908, the journal was sold by the Fessenden family to a private collector. Not long after that, a doctoral student at Columbia–Benjamin Kendrick–traced the journal and was able to get Columbia to buy the original manuscript, which he then reproduced in his 1915 dissertation. Kendrick verified the Journal’s authenticity by contacting Mark’s son to confirm his father’s handwriting.  (There were also handwritten sheets from some of the members of the Joint Committee in Mark’s collection.)

This account, though, leaves many questions unanswered.  When did Mark write the journal?  At the time the Committee was meeting, or years later? Was he a reliable eyewitness? Since there are no other records of the Joint Committee’s proceedings, how do we know that Mark’s notes on the motions are correct? And did anything go missing in the decades prior to publication?  Strange that these questions have not been pursued by researchers.


Introducing Guest Blogger Jane Murphy

I am delighted to welcome Jane Murphy, the Laurence M. Katz Professor of Law at the University of Baltimore murphy copySchool of Law, who will be visiting with us this month.  Professor Murphy has published widely on family and children’s issues. Her articles have appeared in the in the Cornell Law Review, Notre Dame Law ReviewNorth Carolina Law Review, the ABA Family Law Quarterly and several other journals. She is also the co-author of two books on family conflict resolution. She is the recipient of numerous grants to conduct empirical research to improve the legal system, including a two-year domestic violence study funded by the National Institute for Justice.  She has also chaired the American Bar Association’s Committee on Clinical and Skills Education and regularly serves on ABA site accreditation teams for the law schools throughout the country. She is on the Editorial Board of the Family Court Review. She received the University System of Maryland’s 2004 Award for Faculty Excellence and was the first recipient of the University of Baltimore’s Presidential Faculty Award in 2004.

Professor Murphy is the recipient of numerous other awards including the 2015 Pro Bono Resource Center of Maryland’s 25th Anniversary Honoree Partner Award, the 2011 Maryland Legal Aid Centennial Champion of Human Rights and Justice, The Daily Record‘s 2004 Leadership in Law Award and the 2003 Benjamin L. Cardin Distinguished Service Award. In 1999, Murphy was named one of Maryland’s Top 100 Women, and, in 1996, received the law school’s Full-Time Faculty Outstanding Teaching Award.

Professor Murphy has lectured on comparative family law at the University of Aberdeen, Scotland, the University of Sarajevo and Shandong University, China. In spring 2000, she was a visiting professor at the Washington University School of Law in St. Louis, Missouri. Murphy is a member of the District of Columbia, Maryland, and New York bars.

Her recent publications include:

Moving Family Dispute Resolution from the Court System to the Community, 75 Md. L. Rev. Endnotes 11 (2016)(co-authored with Jana Singer)

Divorced from Reality: Rethinking Family Dispute Resolution (NYU Press 2015) (with Jana Singer).

The Role of Political and Social Movements on Women’s Entry into the Legal Profession in Maryland: 1902 – 1918, in Finding Justice (Thompson/UVA Press 2015).

Family Mediation Theory and Practice (co-author with Robert Rubinson) (Lexis/Nexis 2nd Edition 2015)

Revitalizing the Adversary System in Family Law, 78 U.Cin. L. Rev. 891 (2010)

Resolving Family Conflicts (co-editor with Jana Singer) (Ashgate 2008)

Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 Notre Dame L. Rev. 118 (2005)

You can find her SSRN page here.


Introducing Guest Blogger Jana B. Singer

JSinger copy 2I am delighted to introduce Professor Jana B. Singer who will be blogging with us this month.  Jana Singer is Professor of Law at the University of Maryland Frances King Carey School of Law.  She teaches courses on family law, contracts, constitutional law, and collaborative law and practice.  A 1981 graduate of Yale Law School, she has written widely on family and children’s issues and on family dispute resolution.  Her publications include Divorced From Reality: Rethinking Family Dispute Resolution (NYU Press, 2015) (with Jane Murphy) and Resolving Family Conflicts (Ashgate, 2008) (with Jane Murphy).  Professor Singer is a member of the American Law Institute and a past Chair of the Family and Juvenile Law Section of the American Association of Law Schools.  She currently serves on the editorial board of the Family Court Review and as President of the Divorce Roundtable, an interdisciplinary group of attorneys, judges, mediators and mental health professionals, dedicated to improving the process of divorce and parental separation for children and families.

Her recent publications include:

Divorced From Reality: Rethinking Family Dispute Resolution (with Jane C. Murphy) (New York University Press, 2015)

Divorce American Style: Review of Wendy Paris, Splitopia: Dispatches From Today’s Good Divorce, 50 Family Law Q. 139 (2016) (with Naomi Cahn)

Moving Family Dispute Resolution From The Court System to the Community, 75 Maryland L. Rev. Endnotes 9 (2016) (with Jane Murphy)

Bargaining in the Shadow of the Best Interests Standard: The Close Connection Between Substance and Process in Resolving Divorce-Related Parenting Disputes, 77 Law & Contemp. Prob. 177 (2014)

You can find her SSRN page here.



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


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.


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

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 (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


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.