Congratulations to Anne Dailey, who recently served as guest editor for Volume 64, No. 3, the Fall 2007 issue of the journal American Imago, Psychoanalysis and The Human Sciences. The volume now sits proudly on the Dean’s Bookshelf. What an honor for a law professor to have been chosen team captain for a journal founded in 1939 by Sigmund Freud and Hanns Sachs and that is now published by Johns Hopkins University Press. As you would expect, Anne devoted the issue to Legal Analysis and assembled an array of probing thinkers who eagerly accepted her challenge to reflect about the relationship between psychoanalysis and law. Contributors to the volume include Amy Adler (NYU Law); Nomi Stolzenberg (USC Law); Adam Sitze (Amherst, Law Jurisprudence and Social Thought); Martha Umphrey (Amherst, same); and Ravit Reichman (Brown, English).
And right there with this distinguished group is our own Susan Schmeiser, whose essay within the volume, entitled “Punishing Guilt”, (pp. 317-37) helps sustain our reputation as a school where interdisciplinary work adds value to our enterprise not buzzwords to a brochure. Congratulations Susie.
Anne’s introduction traces the history of efforts to explore links between psychoanalysis and law. She cites Jerome Frank’s classic, Law and the Modern Mind as emblematic of the first generation of such efforts. Here the legal realist focus was on the impossibility of judges as truly “objective” decision-makers, and Frank used psychoanalytic concepts, among others, to explore the roots of subjective factors that inevitably shape judicial outcomes. Anne identifies the “high water mark” of law and psychoanalysis as the publication in 1967 of the 800 page treatise penned by Joseph Goldstein, Jay Katz and Alan Dershowitz, entitled Psychoanalysis, Psychiatry and Law. This “second generation” classic uses psychoanalysis as a tool to rethink many basic areas of law, particularly those involving crime and punishment. But, as Anne describes, each of the first two eras championing psychoanalysis and law involved scholarly overreaching, since it turns out that many basic components of legal thought are not compatible with the idea that a large portion of human conduct is outside conscious control. Accordingly, in this volume of American Imago, Anne launches a third generation of such scholarship in which the emphasis rests on teasing out potential implications of thinking differently. Anne’s goal, admirably achieved, is to put together essays that show how we might gain deeper insight about law from considering the more nuanced perspective of human motivation that psychoanalysis might offer. But Anne is understandably skeptical of the idea that psychoanalysis will prove a tool that will upend or displace our traditional legal categories and she has selected pieces that share this perspective.
Susie certainly takes Anne’s theme to heart, and she offers a thought-provoking essay that uses the Freudian concept of guilt to explore an array of issues within criminal law. She begins with an opinion by Judge Bazelon that explores a psychoanalytic explanation of fleeing the scene of a crime. It’s a familiar point that the fleeing suspect may be motivated by fear of cops rather than a guilty conscience. So it’s wrong for a jury to leap to the conclusion that flight represents a sense of guilt. But Susie points out that even if the flight is motivated by guilt, psychoanalysis suggests that guilt can come from many sources other than having actually committed the crime of which the suspect is accused. Susie’s first point then is that psychoanalytic understanding should help shape the sort of inferences permitted to juries, and perhaps this can be controlled in part through jury instructions.
Point two of her essay goes more deeply into the basic assumptions of the criminal law. If we are to punish wrongdoers for their actions, we want some assurance that the actions being punished are within the conscious control of the guilty. Yet psychoanalysis shows that people are often moved to action by unconscious forces, in this case perhaps a guilty desire for self-punishment. Is it fair to punish people under these circumstances? Of course, psychoanalysis is hardly the only psychological theory that questions the idea of free will that grounds most criminal law. But Susie uses it as a proxy to explore the tension between ordinary idea of mens rea and more complex notions of human cognition.
Finally, Susie turns to a third way in which the notion of psychoanalytic guilt plays havoc with our familiar conceptions. The criminal law typically assumes that people want to get away with their crimes and will fight as hard as they can to resist punishment. It’s that resistance, aided by lawyers, that gives some sort of legitimacy to criminal sanctions. Suppose, however, that a criminal defendant actually seeks punishment and thus chooses not to put up a fight when the state seeks to impose a sanction. Does the sanction remain legitimate? Now suppose the sanction is the death penalty and the defendant wants to die? Susie offers this as a particularly interesting example of what happens when we begin to think through possible implications of psychoanalytic guilt. As we know, she is working on a much longer piece exploring this particular dilemma, and we all look forward to it. In the meantime this essay stands as a proud monument to value of writing about multiple disciplines in ways that capture the imagination of readers from many quarters.
Congrats to you both!